ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 598-600.
POSTMODERNISM AND LAW: JURISPRUDENCE IN A FRAGMENTING WORLD by Helen M. Stacy. Burlington, VT: Ashgate Publishing
Co., 2001. 201 pp. Cloth $89.95. ISBN: 1-84014-749-0.
Reviewed by Archie Zariski, School of Law, Murdoch University.
This book might have been titled "Everything You Wanted to Know About Postmodern Philosophy But Were Afraid
to Ask", but it is far from being a "Postmodernism for Dummies". Which is to say that I found the
volume useful but not an easy read--reflecting the significance and difficulty of the topic.
Many may have already written off postmodern writing in relation to law and governance as outmoded and discredited.
In this volume Helen Stacy, a legal academic, aims to rehabilitate postmodernism--to restore it to a significant
place in the contemporary currents of legal theory, and she largely succeeds. This goal is accomplished through
examining the intellectual roots of postmodern thought and then surveying the ideas of some of its leading lights.
A beginning chapter is devoted to exploring the philosophical underpinnings of modern mainstream legal thought
including reference to the Frankfurt School of critical theory. This is followed by further examination of contemporary
liberal jurisprudence including reference to critical legal studies. Then one chapter each is devoted to the writings
of Michel Foucault, Jacques Derrida, and Jacques Lacan. Next comes a chapter focused on the work of Jurgen Habermas,
by way of contrast to postmodernism. The final two chapters contain Stacy's arguments for continuing to engage
with postmodern thought.
Three concerns are highlighted and woven into the fabric of this volume: the question of authentic identity, the
issue of effective agency and the problem of credible ethics. In chapters 1 and 2 Stacy details well the stance
of modern liberal legal theory towards these themes, tracing the roots of modern thought back principally to Kant.
These two chapters also contain examinations of the work of some precursors of postmodernism--the critical social
theory of continental Europe (represented by Horkheimer and Adorno) and the realists and "crits" of America.
Chapter Three navigates the work of Foucault, oriented by the themes of knowledge and power. Stacy exposes well
Foucault's legacy of the archaeology of knowledge and the genealogy of power but questions his stance on individual
agency. Although she acknowledges Foucault's insistence on the possibility (indeed perhaps the inevitability) of
resistance Stacy regrets the lack of a clear analysis of individualized power and the absence of an ethical credo
in Foucault's work. Here the author of this volume clearly reveals her own stance and beliefs--liberal legalism
should be salvaged not jettisoned and the authenticity, agency and ethics of the individual respected. In this
reviewer's opinion Stacy may have missed a crucial element of Foucault's
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thought which he perhaps shares with other "postmodernists"-that a performative ethics is to be preferred
to a normative one. Through doing and being in the world a person's identity and beliefs become known and may be
considered exemplary by others, with no need to preach. Such an approach may be the fruit of postmodernism's engagement
with art and aesthetics. For instance, Foucault's active homosexuality (not mentioned in this book) may be considered
a statement of identity and agency as powerful as his writing.
Chapter Four is devoted to the work of Derrida and rightly focuses on his preoccupation with language and writing.
Stacy exposes the Derridean idea of the text and the inevitability of its deconstruction without fully embracing
it. In this chapter in particular the incompleteness or lack of force of the quotations included in the book is
apparent. That problem, however, is probably unavoidable since postmodern writers are not known for convenient
"thought-bites" involving sweeping and conclusory statements. Stacy takes issue with Derrida's (unusually
pithy) assertion that "deconstruction is justice" which she regards as a major challenge to liberal
legal theory. She laments what she calls Derrida's "deferral of desire" for justice and democracy but
perhaps fails to recognize the full promise of deconstruction. I read Derrida more optimistically as saying that
deconstruction aims at, but can never adequately accomplish, knowledge of the other, unmediated by the text (revelation
of identity); acceptance of her unquestioned presence (justice amongst equals); and peaceful coexistence uncontaminated
by false representation (direct democracy). Stacy concludes that Derrida deconstructs reason itself and is unacceptably
nonrational, calling into question the possibility of effective agency by a legal subject. She seems blind to the
possibility that Derrida's vision of life is more positive and his work exemplary in continuously seeking to find
(and embrace)
the other who has been suppressed in the text. Stacy is left to weakly applaud Derrida's deftness in juggling words
and meanings for its value in traditional legal interpretation.
The writing of Jacques Lacan, the post-Freudian psychoanalyst, is the subject of Chapter 5. Here Stacy does an
admirable job of explicating the complex theory developed by Lacan to explain the postmodern subject. Although
there is an exposition of how Lacanian analysis has been treated in feminist legal theory, Lacan is not dealt with
further in this book after the conclusion that he calls into question "the very possibility of selfhood".
In Chapter Six the author considers the impact of Habermas on contemporary legal theory by way of contrast to the
preceding postmodernists. Habermas is a self-proclaimed "neo-modernist" who seeks new ways to fulfill
liberalism's promises of equality and justice, and this approach sits well with Stacy. Habermas's concepts of "ideal
speech conditions" and "communicative competence" are well described as well as his theory of "communicative
action". In these we see a new foundational proceduralism--an attempt to rescue the liberal subject from mass-marketed
brand name "individuality" in consumer society. Habermas seeks to found democracy and justice on the
practice of communicative rationality rather than the elaborate institutions of late modernity: the State, the
Market, and the
Media. However, to my mind, in so doing he simply assumes the conditions that postmodernists question--sincere
agency, authentic identity and determinate consequences. Nevertheless, Stacy applauds Habermas's "middle way"
of
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critiquing contemporary liberalism with the aim of rejuvenating it.
In the final two chapters the author offers a summary and analysis of the modern/postmodern divide and an argument
for continuing to engage with postmodern thought. For Stacy, postmodernism is problematic as tending to relativism,
nihilism and nonrationality. Some of such criticism I believe is based on shallow or hostile readings of postmodern
writing, but I do not suggest this of Stacy. She makes a sensible case for treating postmodernism warily but nevertheless
concludes that postmodern challenges to assumptions about the liberal subject can be seen as helpful to the ongoing
project of liberal legalism. Perhaps Stacy's weakest argument here is that postmodern thought is uniquely attuned
to the "fragmentation" of modern reality. However, on the contrary, many postmodernists emphasize the
smoothing and smothering effects of globalized capitalism that is tending towards an ultramodern universal "new
world order".
In sum, I recommend this book for those who can keep an open mind about postmodernism and want to know more. I
too believe, along with Stacy, that postmodern writing continues to reward careful reading, although not always
for the same reasons as she. But let the author have the last say, "One feature remains a constant in both
the modern and the postmodern account of subject status: the ongoing wish for authentic agency. Our aspirations
for particular ideals that are the mark of the politics of modernity - fairness, equity, and justice - exist alongside,
and possibly even despite, modernity itself."
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Copyright 2001 by the author, Archie Zariski.