Law, Modernity, Postmodernity

Legal Change in the Contracting State

Brendan Edgeworth

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781138741997
• eBook ISBN: 9781351725613
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2003. This book examines the interrelationship between the unravelling of the post-war welfare state and legal change. By reference to theorists of postmodernity such as Zygmunt Bauman, Scott Lash and John Urry, and David Harvey, the principal argument is that contemporary law and legal institutions can be best understood as having changed in ways that mirror the recent transformation of the interventionist welfare state and its Fordist, Keynesian economic infrastructure. The key changes identified in the legal field include: - the shift toward marketized regulatory structures as reflected in privatization and deregulation, the attenuation of welfare rights, the privatization of justice, legal polycentricity, the reconfiguration of the welfare state's social citizenship and the globalization of law. Empirical evidence from a number of jurisdictions is adduced to indicate the general direction of change.

1 Legal and Social Change

One of the birds lodging in the nicotined greenery outside his window seemed to have learnt how to imitate a car alarm: a looping lasso of sound. Various car alarms belonged to various types, various genres: the nagging, the hysterical, the scandalized. There was even a postmodern car alarm, which trilled out a fruity compendium of all other car alarms. This was the car alarm that all the birds of London would eventually know how to do (Amis, 1995: 464-465).

Today legal practice privileges neither the conditional programs of bourgeois formal law nor the purposive programs of welfare law . . . The opaque and inconsistent structure of such a legal order has thus stimulated the search for a new paradigm beyond the familiar alternatives (Habermas, 1996: 390; italics in original).

Introduction

The profound historical changes that have occurred over the last generation – social, economic, technological and political – confer on our age its particular distinctiveness. They reveal a world that appears to have broken from its past in a very decisive maimer. Unsurprisingly, a transformation of such magnitude has been theorized in many, and contradictory, ways. One common method of measuring the novelty of the present is to focus on its historically unique features. Among many other descriptions, we are said to live in a "global age", a "digital age", or a "computerized society". A rather different way of defining our contemporary condition is by reference to its "pastness", or "postness". On this view, where we now stand is best captured by means of charting how much history has been jettisoned or left behind. Typically, the relevant past is a recent past: the ideas and achievements of the preceding generation provide the yardstick. We are therefore "postsocialist", "postinterventionist", or "postwelfare".

This kind of retrospective thinking is also evident in theories that characterize the present by reference to more distant times. They make the more sweeping, macroscopic claim that our world has severed its links with a much larger tradition: the great edifice of modernity is seen to be transcended, its values questioned, and its promises open to unprecedented doubt. The various forms that this vision has taken in many spheres of contemporary culture and society are often (and still) denoted by the umbrella term postmodern. It has induced many influential commentators, whether in joyful celebration, melancholic lament or studied detachment, to suggest that we are now living in a postmodern age. As Agnes Heller and Ferenc Feher conclude: "those living the present as postmodern . . . live in the present while at the same time, both temporally as well as spatially, they are being after" (1988: 1; italics in original).

The vast body of literature in this genre can be further subdivided into two basic categories. The first category – more firmly and widely established, and no less controversial – is concerned with the critical assessment of the values, ideologies and cognitive frameworks unique to modernity. It rejects as undesirable or unworkable those ways of seeing the world. The second category of theory that articulates the idea of "being after" in this larger sense examines the emergence of new or transformed social institutions. They are held to parallel the changed culture, and receive nourishment from it. The broad influence of this particular approach began with the claim that a distinctive practice of postmodern architecture had made an appearance (Jencks, 1977), to be followed by the identification of, among others, postmodern art (Taylor, 1988), postmodern film (Harvey, 1989: ch 13), postmodern fiction (McHale, 1987), the postmodern university, of course (Smith and Webster, 1997), and even the postmodern church (Newman, 1990). And not forgetting Amis' car alarm.

Yet to analyze the evidence of recent social change as in some way "post", and so to bring to the term a predominantly sociological and historical colouring, is very much a minor pursuit in the broad landscape of what is generally understood to be postmodern theory. Anthologies of writing in this genre routinely marginalize or ignore it. By contrast, for the purposes of the following chapters, by far the most valuable contribution to be gleaned from that vast body of work is its contribution to the analysis of social change. To the extent that social and legal change are inextricably intertwined it is also directly relevant to understanding the transformation of contemporary law. The focus of this book will be primarily on structural, systemic and doctrinal change in law as informed by this branch of theory, rather than postmodernist perspectives on law. And it will offer a critique of the latter in part by reference to the demands of the former.

My general argument is that law in the most developed societies has taken on a distinct postmodern identity, to no less a degree than modern law has reflected the character of modern societies. Mindful of the importance of not mistaking ephemeral and transitory trends for more fundamental social transformation, the conclusion I reach is that, taking a long view of historical development, there is more than enough evidence to suggest that, in Jürgen Habermas's terms above, "a new paradigm" of law has emerged. In particular, this paradigm is inextricably bound up with, and explained by, a restructured state apparatus (described in shorthand as a "contracting state"¹), a transformed economy, and a reconfigured civil society. Briefly, my thesis is that as the modern interventionist welfare state gradually reduces the scope of its domestic functions, and the nation state declines in the face of supranational influences, many fundamental pillars of modern societies are weakened. In turn, law and legal institutions are subjected to historically unique changes in a wide variety of fields consistent with those broader developments. To understand those linkages, it is necessary to make use of what Zygmunt Bauman describes as a "sociology of postmodernity" (1988a). In this endeavour, the frameworks that have been deployed to understand modern society and its law in sociological and historical terms are not particularly helpful, nor will analogies with earlier times suffice. By way of an example, quips Bauman, "the present depression is not a later edition of the 1930s (one hears of the poor losing their jobs, but one does not hear of the rich jumping out of their windows)" (1988a: 235).

There are many who in the last decade or so have viewed law through a postmodern lens. In general, these analyses have tended to avoid sociological or historical perspectives in favour of a multidimensional critique of the various features of modern law. Notably scarce among these approaches is any consideration of how far the pattern of recent convulsive social transformation has affected law structurally and institutionally, and the extent to which legal change has marched in step with broader attitudinal and social change. In this respect legal scholarship stands in stark contrast to those studies of other social spheres that have analyzed changes within institutions in the context of a fundamentally changed social environment. In chapter 6 I will critically review some of the major themes in this body of legal scholarship. My conclusion is that its many weaknesses are partly traceable to an ingrained tendency to downplay or ignore wider institutional transformation; but those weaknesses also derive from the hyperbolic and dystopian claims pervasive in the critical predispositions of wider postmodern theory.

Before a survey of some of the key empirical changes in contemporary law can be examined, the term "postmodern" must be dissected, and to embark on this exercise demands a survey of its correlate, the "modern", in order to see more clearly what it is exactly that postmodernity is supposed to have surpassed or transcended. To the extent that there are major disagreements about the meaning of the terms here, and indeed there are many who believe alternatively that it is more accurate to refer to the condition as late modernity rather than postmodernity, or that all talk of being "post" is quite futile (eg Callinicos, 1989), or even that we are already post-postmodern (Frow, 1991), the definitional and theoretical question is a threshold one. Equally, insofar as these terms abound in contemporary theoretical analyses of law, and have appeared with growing intensity in recent years, a detailed examination of their various meanings, and the attendant perspectives they suggest for the analysis of law, is a preliminary focus of this study. Only after such an examination will it be possible to address my central argument: the extent to which many of the typically modem features of law have been eroded, reshaped and displaced by more recent developments.

The Problem of Postmodernity

The epithet "postmodern" has been current for almost half a century. From its humble beginnings in the works of the historian Arnold Toynbee (1963), and the sociologist C. Wright Mills (1959), a widespread obsession with evaluating, measuring and criticizing the "modern" has become one of the defining features of the contemporary intellectual landscape. This visibility is not only a feature of social and cultural theory; it has also become a vogue term of art, though more often abuse, all the way from popular to highly theoretical and philosophical social commentary. An important shift of perspective has surely appeared when journalists in popular newspapers commonly invoke the term, as in the identification of a present "postmodern monarchy" (Starkey, 1995), or claim that "if the Angelus could be taken off the airwaves, this would prove how postmodern and cool we all are now" (Kenny, 1999). At the other end of the spectrum of social analysis, it is hardly less significant that Margaret Thatcher can be described, if only ironically, "as the first genuinely 'postmodern' politician" (Habermas, 2001: 59).

Despite the tendency for the term to seep ever more widely into the collective consciousness, or perhaps because of it, a disquieting vagueness about its meaning persists. A label that can apply equally to buildings, novels, video clips and constitutional law, among many other social phenomena, has an understandably unsettling amount of inbuilt elasticity, and has, for that very reason at least, become "notoriously vertiginous" (Hebdige, 1988: 183). Therefore many who, like the fictional guest authors at the international literary theory conference in David Lodge's Small World (1985), disapprove of it as probable nonsense, dare not say why they do so, because they cannot – with considerable justification – fully comprehend all of its possible configurations. Practising lawyers and legal scholars in particular, with their ingrained proclivity for linguistic precision and who might be prepared, at a pinch, to tolerate the fuzziness of legal terms such as "reasonable foreseeability", "in good faith" and "just and equitable", are predictably suspicious of a notion of such indeterminate reference (Davies, 1994: ch 7).

By contrast, Raymond Williams has mounted a compelling argument against taking doubts of this nature too far (1976: 19). It would be a mistake to give up on any term purely on account of its many meanings, he concluded, for the reason that there is commonly a direct correlation between the number of shades and nuances of meaning that a word has acquired, and its centrality in historically important debates:

In such a case, each group is speaking its native language, but its uses are significantly different, and especially when strong feelings or important ideas are in question . . . What is really happening through these critical encounters, which may be very conscious or may be felt only as a certain strangeness and unease, is a process quite central to the development of language when, in certain words, tones and rhythms, meanings are offered, felt for, tested, confirmed, asserted, qualified, changed. In some situations this is a very slow process indeed . . . In other situations the process . . . can seem unusually rapid and conscious (1976: 11-12).

It follows that the many layers of meaning of postmodernity reflect not so much imprecise thinking, or even obscurantism – though there is a fair bit of both about – but widespread use which, in turn, suggests that it represents a cluster of ideas which significant numbers of people have felt crucial to analyze and debate. It is hardly surprising that where the ultimate focus of inquiry is on a phenomenon as vast and amorphous as modernity, and its manifestation in particular fields, the "post-" will exhibit a comparable measure of diversity. Inevitably, the various elements in this new theoretical concept will differ from user to user. What some may see as essential characteristics will appear to others as quite superficial, and the concept will be used in ways that reflect their respective idiosyncrasies. In time, and for postmodernity this is, in Williams' terms, a short time of "unusually rapid and conscious" development, it may come to bear little resemblance to its original meaning. Like the coat that has been wrapped around many shoulders, it eventually droops over all who come to wear it.

In this respect, terms such as postmodernity, or postmodernism, are no different from many of the concepts most frequently used in theoretical inquiry in any region of the humanities, as Williams made abundantly clear. "Liberalism", "positivism" and "totalitarianism", for instance, have undergone a similar measure of multiple and discrepant interpretation. But the fact of disagreement as to what the correct meaning is hardly justifies abandoning the term altogether; rather, the fact of disagreement points to the importance of the category as a descriptive and prescriptive marker. As it has extended ever wider it has acquired more meanings that, mushroomlike, generate even more debates. In consequence, Jean-François Lyotard, a leading theorist In the field, has concluded in his The Postmodern Explained To Children, "[t]he more the discussion develops internationally, the more complex the 'question of postmodernity' becomes" (1992: 29). Complex, yes, but it is no less important for that. A preliminary exercise in this study is a detailed analysis of the term's various meanings as advanced by the most influential theorists.

In order to begin analyzing what the postmodern is in detail, and justifying its use, it is necessary to offer some tentative, preliminary definitions. So, what is postmodernism, and how does it relate to the cognate terms, postmodernization and postmodernity?

Postmodernism, Postmodernization or Postmodernity?

Many theorists have advocated splitting analysis of the postmodern into at least "postmodernism" and "postmodernity". Even Terry Eagleton, a staunch, engagingly witty, and perceptive critic of most of the ideas embraced by postmodernism, has suggested this move in order to clarify discussion (1996: vii). I want to go one step further and propose three definitions: "postmodernism", "postmodernization" and "postmodernity". In doing so, I am foreshadowing the exercise of mapping the range of postmodern theories in the next chapter. But it may help at least to get a sense of the direction of my argument if I spell out in rough fashion general meanings for these terms, each of which appears in the wider literature. To be sure, some commentators define these concepts in ways at odds with my usage; but I want both to stipulate definitions of the terms as I use them, as well as to deploy them in ways that accord with most common practice. Unlike Eagleton who admits to sliding from use of the term "postmodernity" to "postmodernism" because the latter is of far wider currency (1996: viii), I will try to stick closely to my definitions, for the reason that my focus is a specific set of questions obscured by the allembracing concept of postmodernism. In framing my definitions it may help to borrow from the parallel, "pre-Post-erous" (Hebdige, 1988: 205) definitions offered by Marshall Berman (1982) in relation to the term "modern".

To clarify his general study of modern society, Berman proposes definitions for the terms "modernization", "modernism", and "modernity" (1982: ch 1). The modern era can best be understood, Berman argues, by seeing it as the intersection of these three phenomena. First, modernization refers to the technological, economic and social processes introduced with the emergence of capitalism. Second, modernism is the cluster of visions and ideas that accompanied the rise of modern societies, which have been "nourished" by the "world-historical processes" of modernization. These ideas sought to give expression to the way in which those processes impact on the lives of those people caught up in them; they "aim to make men and women the subjects and objects of modernization, to give them the power to change the world that is changing them, to make their way through the maelstrom and make it their own" (1982: 16). Finally, modernity describes the "mode of vital experience" or the dramatically changed lives of those who inhabit this world. It operates as the umbrella concept to describe the interplay of the processes of modernization and the cognitive and normative features of modernism. As an historical and spatial category it locates when and where this dialectical interchange happens.

The postmodern can be similarly subdivided. Thus, "postmodernization" refers to those processes of technological, economic and social change associated with the era of a later, transformed capitalism. Likewise, "postmodernism" tends to refer to the cultural or critical perspectives on, or distinct sensibilities about, modern literature, the arts and society generally. Finally, "postmodernity" is the time and place within which the dialectical processes of postmodernization and postmodern sensibilities are played out. Simplifying greatly, postmodernity, too, will function in this context as an umbrella term to capture the general interplay between structure and feeling, or between society and culture. It is this broader concept of postmodernity that I want to examine for the reason that it directs attention to the wide array of empirical changes both in society, and also in the nature and structure of law in its widest institutional sense – that is, the legal system, legal doctrine, and legal practices. This approach involves adopting Zygmunt Bauman's perspective of postmodernity as "a fully fledged, comprehensive and viable type of social system" replacing "classical modern, capitalist society and [it] needs to be theorized according to its own logic" (1988b: 811). Moreover, whatever the fate of postmodernism, which ma...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• 1 Legal and Social Change
• 2 Cognitive Mapping
• 3 Modern Law and the Welfare State
• 4 Old Theories, New Paradigm
• 5 Legal Postmodernization
• 6 Critique and Reform
• 7 What Next?
• Bibliography
• Index