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The postmodern rule of law

by Anna Pivaty


From a lecture by Professor Ronald Tinneveld held for the Clinic students on 17 November 2022 we have learnt that there is no single definition of the ‘rule of law.’ There exist ‘thin’ definitions which focus on formal legality, and more substantive definitions, which emphasise for instance social welfare rights. Whilst eminent law scholars disagree on the content of the rule of law, organisations like the World Justice Project have developed ‘indicators’ of the rule of law, used to fashion ‘authoritative’ rankings of the World countries based on their adherence to the ‘rule of law.’ These indicators reflect concepts like the separation of powers or the independence of the judiciary, both central to liberal political morality and cherished in the Western legal tradition.


How would a postmodern theory of law critique such conceptualisations of the ‘rule of law’? And what is a postmodern theory of law, and why does it have any relevance to our understanding of the ‘rule of law’?


Postmodern approaches to law


The postmodern theory of law has its roots in the 1960s philosophy of social sciences movement called poststructuralism. Poststructuralism emerged as a critique of structuralism, which sought to analyse the social world according to pre-determined structures often expressed as binary opposition, where one of the two has dominance or higher intrinsic worth than the other (eg ‘male/female’, ‘democratic/authoritarian’). Poststructuralists argued that this view of the social world is too simplistic, because social phenomena have multiple meanings and forms. ‘Gender’ for instance cannot be limited to ‘male’ and ‘female.’ Moreover, the various categories which structuralists use to organise knowledge - and thus implicitly consider as ‘universal’ or reflecting the ‘objective truth’ - are in fact socially constructed. They are therefore conditioned by history, culture and subject to biases and misinterpretations.


The postmodern theory of law, which embodies this poststructuralist philosophy, began to develop in the 1970s in response to the legitimacy crisis of law and order in the Western societies. Its starting point is that the modernist, liberal theory of law is a product of the specific historical and cultural context - namely, late capitalism - and that it reflects its political ideology and inherent bias. Liberal law, with its emphasis on rationality and ‘reasonableness’ and its self-proclaimed ‘neutrality,’ in fact legitimises the existing structures of power (the dominance of the white, Western, affluent and male) and serves to suppress the discourses and voices of those on the ‘weaker’ side of the social contract.


The postmodern critique of the ‘rule of law’


So how would those adhering to the postmodern theory of law view the concept of the ‘rule of law’?


Some would probably dismiss it altogether as the product of the (highly biased and non-inclusive) Western liberal thought, which legitimises the existing social inequalities and seeks to mute non-dominant discourses. They would argue that the ‘rule of law’ as a foundational legal principle is meaningless. ‘Law’ within the concept of the ‘rule of law’ is non-existent, because any ‘law’ is in fact ‘politics,’ or the means through which the more powerful seek to subordinate the less powerful (see in particular the Critical Legal Studies movement).


Others would argue that the ‘rule of law’, or the idea behind it, is still valuable as a political ideal or as a mode of practice. They would observe that the concept of the ‘rule of law’ had been discredited. The ‘rule of law’ has been ‘essentialised’, or assigned one particular (dominant) meaning: that associated with the Western liberal polity. It has also been used for ‘wrong’ political reasons such as to legitimise the power of the colonial nations and of the ruling elites. However, the underlying idea behind the ‘rule of law’ as non-arbitrariness or respect for people as reasoning beings is still valuable (as Mark Tushnet argues is an ‘universal good.’). We should however move away from an essentialised and Western-centered approach by acknowledging that there is not one ‘rule of law,’ but several possible ‘rules of law’.


Yet a third group of post-modernists would not seek to pass a normative judgment of the validity or usefulness of the ‘rule of law’ as a legal principle or as a political ideal. Instead, they would seek to deconstruct it, namely to discover the subjective meaning behind its seemingly objective content. They would examine how the concept of the ‘rule of law’ has emerged and developed and which contextual (historical, cultural, political) factors contributed to its development. They would apply different critical perspectives to understand for instance whether and how the ‘rule of law’ was and is deployed to assert the superiority of the Global North over the Global South (postcolonialism; see eg this article arguing that the discourse of reasonableness undermines the notion of qing in Hong Kong Chinese) or the dominance of the white ‘race’ (critical race theory) or of the ‘ruling class’ (Marxism); or whether and to what extent the concept of ‘law’ underlying the ‘rule of law’ with its centrality of ‘reason’ and muting of ‘emotion’ reinforces gender inequalities (feminist legal theory).


Lessons learned from the postmodern critique of the ‘rule of law’


The postmodern theory of law is vulnerable to the same criticism as the ‘mainstream’ positivist law theory. Very much like ‘legal positivism’ (which however does not acknowledge its own political nature), the postmodern theory of law is a political project. Thus, whether or not we agree with all of its postulates depends on our own political views.


However, postmodernism teaches us something valuable about how we should approach and study the ‘rule of law.’ It teaches us that we should be mindful of the cultural and historical context in which ‘grand legal narratives’ such as the ‘rule of law’ emerge. It teaches us that we should acknowledge that our conception of the ‘rule of law’ is not necessarily the ‘right’, the ‘best’ or the ‘only’ one, and that other alternative conceptions might exist. It teaches us to be critical and reflective about what we consider the ‘universal truths,’ to keep questioning the ‘status quo,’ to not take the political rhetoric for granted, and to commit ourselves to ensuring that all voices - and not only those of the most powerful - are listened to and acted upon.


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