I stand on the end platform of the tram and am completely unsure of my footing in this world, in this town, in my family. Not even casually could I indicate any claims that I might rightly advance in any direction. I have not even any defence to offer for standing on this platform, holding on to this strap, letting myself be carried along by this tram, nor for the people who give way to the tram or walk quietly along or stand gazing into the shopwindows. Nobody asks me to put up a defence, indeed, but that is irrelevant. (Franz Kafka, ‘On The Tram’, in Vie Collected Short Stories of Franz Kafka, 1988: 388)
As for law, it too partakes of the radical uncertainty of the rest of life, the want of firm external standards. But it is also a special kind of living on these conditions, a way of making standards internally, out of our experience, as we make ourselves in our talk. The law is in fact a method of cultural criticism and cultural transformation, as well as cultural preservation … law is in structure multivocal, always inviting new and contrasting accounts and languages. (James Boyd White, 1986: 1386)
This text started with reflections upon the complexity of asking general questions about the nature of law. It has subsequently conducted a narrative from existential origins through readings of jurisprudential writers from Classical Greece to the present. There is no easy ending; the journey’s consummation is simply the context of our times – a period many commentators have come to call post-modernity. There is no easy description or definition of this concept; we are, perhaps, too involved in the complexity and confusion of the present to be able to define with certainty its major processes and structures.1 What is clear is that our considerations of law reflect the ambiguities, hopes, confusions and fears of the post-modern condition. The dialectic, for example, between the fear of the alienating effects of law embedded in the CLS movement, and the pride in law demonstrated by Ronald Dworkin, is daily reproduced between those who see the effect of globalisation as entrapping the underdeveloped world in webs of western (legal) domination and those who see in globalisation the spread of a legal culture of human rights, equality of opportunity, and the opening up of individual life projects for new subjects. Others, however, point to the rise of the ‘Asian Tiger Economies’, which combine capitalism with social traditions of patriarchy and relative authoritarianism, and fear that in the new world economic order the benefits of western legal liberalism will increasingly come under fire and a new fascism emerge. Commentators cannot agree either upon the health of the world order – is it an enormous mess, or is today the best time to be alive in world history – or as to the prospects for social order – is the nation state now redundant and do we need a new international world order and law? While realist commentators point to record absolute amounts of poverty,2 others (for example, Richard Rorty, 1989) note that never before have so many people appeared to care about the lives of others, or, for that matter, had the technology to know about other’s lives. Certainly, jurisprudence cannot ever be again – at least with good conscience – an abstract study of philosophical models. Its aim is wisdom as to law’s being and law’s effects. One is reminded, however, of Hegel’s hopes, and of his statement that wisdom will only arrive when human activity has ceased; must this be so? It appears, perhaps at this time more than ever before, that this is the case. The diversity of modes of approaching law – modes which also serve to constitute their domain of study – render impossible a setded definition of law. Law, for instance, has become an vital cultural manifestation – its language mediates the very forms of social construction it buttresses – and its instrumentality cannot be reduced to merely facilitating political or economic interests, or the enabling of desires to be satisfied, for its expressive function is not mere ideology. Law enables forms of life – from the self-regulating zones of privacy prescribed in the classic liberalism of John Stuart Mill – to that of the structured world of the fundamentalist Islamic society. Stanley Fish (1991) once said that ‘the law wishes to have a formal existence’, by which he meant that the law wishes to be distinct, not something else, and it wishes its autonomous existence to be self-declaring, in case its autonomy – perhaps its ‘integrity’ – would be compromised. The enterprise of legal positivism sought to protect the formal self-sufficiency of law from morality, but, in so doing, rendered empirical law the amoral servant of social forces. In the post-modern context, law’s uniqueness flows more from its versatility and the openendedness of the social forms it structures, than from its purity. As James Boyd White, a proponent of an emerging ‘law and humanities movement’, states, in the second of the opening quotations, law cannot help but partake of the radical uncertainty of (post-modern) life, and its multivocal structure renders it implicated in many contrasting accounts and languages. Law’s flexibility ensnares it in the post-modern dialectic of multi-directionality against directionless performivity. The writer Franz Kafka may provide an appropriate witness to elements of post-modernity with which to conclude.
… No one, no one at all, can blaze a trail to India. Even in his day the gates to India were beyond reach, yet the King’s sword pointed the way to them Today the gates have receded to remoter and loftier places; no one points the way; many carry swords, but only to brandish them, and the eye that tries to follow them is confused. (Kafka, The New Advocate, 1988: 415)
In the foundational text of modernity, Hobbes’ Leviathan, law is the sword of the Sovereign who is to watch over us and within whose dominion we can pursue our legitimate desires. In time, the idea of social progress was joined with law so that law was seen as an instrument to guide us to that land and time of our happiness. Law was to be the guarantor of modernity, sure in its purpose, the instrument of rational power. Writing, however, during a time which should have been infused with the hopes of organised modernity, the ‘central-european Jewish’ writer Franz Kafka, conveyed an existential condition of extreme ambivalence.3 Many carried swords, but ‘only to brandish them’; law seemed to have lost its rationality, how could a pattern of coherence or a common social goal be believed in? The dominant discourses told of the creation, through historical struggles and the granting of legal rights, of a modern subject which was being incorporated – by a process of assimilation – into the practices of organised, structured modernity. Instead, however, of contentment and reasoned satisfaction, Kafka relates feelings of personal suspension and ambiguity.4 In Kafka’s stories the subject is forced to live a situation of contingency and choice; longing for a life of relative peace and contentment within a socially just and acceptable social order, the subject finds only a rapidly moving terrain where little makes sense, where there are few places to rest and insufficient time to attain certainty. Kafka’s characters become increasingly confused and bewildered as they attempt to ascertain the truth of their social context and the essence of the institutions which surround and position them. In this uncertain world, neither the law nor their cultural heritage offer certainty.5 We students of the various horrors of our century know this only too well. In the lead-up to the holocaust, the legal subjectivity of the German jews – their citizenship – was by law taken from them. What was given by law could be taken away by law. Was there, then, in the light of modernity’s excesses, any legitimate foundation, any truth, to our acceptance of modernity’s creations?6 And if not, what ought we to do? Various answers, or, perhaps, more appropriately, temptations, arise.
One of the themes which concerned Kafka was the search for the truth of law. In The Problem of Our Laws, Kafka (1979) depicts a community which is governed by a very secretive and traditionally legitimate nobility which claims exclusive access to the knowledge of the law and its obligations. The nobility also ensures that all the other social groups remain ignorant of the truth of the law. The nobility achieve domination over ‘the common people’ on the grounds that tradition has established that the nobility know the secret of the law and wield it fairly and without self-interest: ‘the nobles stand above the law, and that seems to be the very reason why the law has been given over exclusively to their hands’ (1979: 128). The nobility, with its claim to integrity, stands in contrast with the apparent subjectivity of all other social groups, which have their specific projects to pursue. Only the detachment of the nobility can guarantee that they will not abuse ‘truth’. Paradoxically, however, this claim is circular: the nobility are accepted as self-evidendy neutral precisely because they control the law.
Kafka places the subjects of this story in the grip of a subde bind: the rule of law is taken for granted, but in practical terms this means that the rule of the nobility is placed beyond question. Since the secret of the law is known only by the nobility, only they can claim to know what is to be done, and indeed, what has to be done; the populace – as Hart (1961) admitted – ultimately need only trust that the officials are doing their task with appropriate integrity. (It is tempting to replace Kafka’s nobility with ‘experts’ and we have the picture of domination in a supposedly rational modernity founded on the deepest irrationality.) But an ironical doubt creeps in to this otherwise watertight situation. If the law is only known by the nobility, and if everyone else is necessarily ignorant of its essential form, then perhaps it is actually the case that law does not have a core of meaning. The essence of law, the answer to the question ‘what is law?’ and ‘what ought law to be guided by?’ may not exist. Perhaps the only secret is the secret that there is no answer? In other words, the domination of modernity is actually founded upon an abyss of meaning, and a subde fascism. There is no secure grounding from which to issue injunctions as to the quality of law, the only thing that legitimates the rule of the rulers, is the very success of their domination. But our knowledge of this outcome is deeply ambiguous, for whilst it may deprive the rulers of the master principle of their domination, it also removes the instrument by which the people were meant to control them; since, to hold the rulers accountable, we need strong ethical and political arguments.7
In Kafka’s stories, structures of complex bureaucracy and reification hide the abyss created by the deconstruction of natural artifice. A formal belief in the existence of law’s secret restrains the abyss of meaning from breaking into social consciousness: ‘There is a tradition that [the meanings of law] exist and are entrusted as a secret to the nobility, but this is not and cannot be more than an ancient tradition to which age lends authority’ (Kafka 1979: 128). Could modernity survive the knowledge that there was no great destiny? Kafka reads the story of the destiny of the human condition as the same as the study of law’s imagination. Both share a ‘belief that one day the time will come when both the tradition and our study of it will arrive … at their conclusion. All will have become clear … the law will at last belong to the people, and the nobility will vanish’ (Kafka 1979: 129). Through its role as the goal of the relentless pursuit of knowledge, the idea of coming to know the truth of being becomes the transcendental signifier in relation to the obscurity and utterly reified relationships of the present. We join with Plato’s transcendence of the cave, not by actually having achieved it, but by our belief that we will achieve it in the future. But Kafka declares this is a self-delusion. The future time and place in which the secret of law will be known by all and in which the nobility has quite disappeared can never arrive. There is only the void – thus we must face, forever, the need to assert power without extra-human guarantees. We cannot escape from the need for the nobility: ‘The one visible and indubitable law that is imposed upon us is the nobility, and could it really be our wish to deprive ourselves of this solitary law?’ (Kafka 1979: 130). Ought we, then, to make ourselves into a new nobility?
Kafka’s story points also to dialectic involved in the very idea of progress and modernity. Our belief in the continuance of progress depends on a fully modern society – the society of perfect justice – never actually being achieved, but we cannot tell ourselves this fact, in case such a realisation would mean that we gave up upon the enterprise: ‘rather are we inclined to hate ourselves because we cannot yet be judged worthy of the law’ (Kafka 1979: 129). The modern person has to assume, or has to be told, that perfection – truth – is a realistic, albeit futurist, possibility. In that way the struggle for justice, the political commitment to justice, the march into the future and out of the past, is provided with some sort of meaning and purpose. By contrast, post-modernity is the growing awareness that that linkage is absurd. Put another way, postmodernism is the realisation that there can be no Utopia of the just society – the voyage is doomed – and, by implication, we are at the destination, the problem is that the destination is no conclusion. There is no end(ing).
Can jurisprudence, as a search for the big picture – for the wisdom of law – survive, or is it doomed to descend into a babble of competing discourses with no common threads and little relevance? How do we account for the proliferation of jurisprudential discourse, and yet, the feeling of powerlessness? In part it is a question of the compatibility of discourse with power. For Lyotard (1984) the social meaning of knowledge has changed; the miniaturisation and commercialisation of information machines has changed the way in which learning is acquired, classified, made available and exploited. The new technologies rank knowledges in terms of their compatibility to the technology and its applications. Forms of knowledge not capable of being articulated in quantitative form suitable for translation into computer language are down graded and have difficulty surviving. The old principal where the acquisition of knowledge was associated with the training of minds or even of individuals is becoming obsolete; knowledge becomes a commodity produced in order to be sold.
The question of knowledge is closely linked to the question of government. Lyotard suggests the functions of regulation and therefore reproduction are being further and further withdrawn from human administrators and intrusted to machines – politics becomes the battle for imagery and public opinion polls. Knowledge is what makes someone capable of forming not only good speech but also good prescriptive and good evaluative utterances. But how are these to be assessed? In Lyotard’s reading they are to be judged to be good by how they confomi to the relevant critena of justice, beauty, truth and efficiency accepted in the social circle of the knowers, interlocutors or peer group. For Lyotard each field constructs its own language games and each utterance is as a move in a game; in his image of the language game, conflict is essential. Lyotard’s persuasive metaphor is war, some positions are indefensible, some attack, demolish, shoot down, undercut other’s arguments: ‘In a discussion between two friends, the interlocutors use any available ammunition; questions, requests, assertions and narratives are launched pall mall into battle. The war is not without rules, the rules allow and encourage the greatest possible flexibility of utterance’ (1984: 17).
It is little wonder then that CLS-influenced discourse plays off with the Law and Economics Movement. The central theme of the CLS movement was to return social organisation to human concerns, to less alienated forms of social life and human interaction. Conversely, proponents of law and economics tend to ask jurisprudence to speak only in the language understood by economic power – money.8 Economics is the language most computer-friendly, most minimalist in its claims concerning human nature. The discourse of the law and economics movement speaks a post-modern language.
Scientific knowledge is not however self-sustainable. It exists in competition and conflict with other forms of knowledge which Lyotard labels as narrative and which dominated in traditional societies.9 While modernity waged war on narratives, narrative survived bestowing legitimacy upon the social institutions and providing positive and negative forms of integration into the established institutions.10 Thus we witness the growing law and humanities movements and the narrative style of feminism – but their power base is ambiguous.
Throughout the developed Western world, social and cultural modernism has come under attack from many diverse quarters. From the right, conservatives argue that modernism has undercut the values of every day life and common sense. Principal and unlimited self-realisation, the demands for authentic self-experiences, the replacement of objectivism by subjectivism have placed a huge onus on the self. The self is meant to see the world as the site of projects and to use the objects of the world as the means to obtain the self’s ends. To the conservative right, this has unleased hedonistic desires irreconcilable with the discipline modern life requires (Gottfredson, M and Hirschi, Travis, A General Theory of Crime, 1990; contrast Morrison, 1995). Hedonism, lack of social identification, lack of obedience, self-love, the withdrawal of deference from authority, are seen not as features of successful modernisation, but of a social and cultural modernity which has lost its way. Conversely, for those on the left, the post-modern problem, is that of the incomplete modernisation of the world (for example, Habermas). When Lyotard claims that in post-modern condition the grand narratives have lost their credibility at the same time as we keep on playing the games that were formerly legitimated by those grand narratives, and do so at a greater level of proformivity, he repeats Nietzsche’s warning that nihilism is the condition engendered when we have killed God but continue to act as if he exists. The narratives of mastery and conquest of nature leave us with a technological emphasis upon control and domination, without, however, a purpose in mind. In this reading, an individualistic, fragmented society, in which law and rights are weapons of small scale conflict, seems our fate. No wonder in these conditions the nostalgia for a pre-modern traditional society surfaces and a multiplicity of little narratives develops. The lack of meta-narrative or meta-language to tie together late modernism is to be remedied by a resurgence in localised narratives or story telling. As narratives bind together the teller and audience, so, for Lyotard, post-modernity is to retain the flexibility of the narrative form yet, somehow, avoid the imposition of total belief systems. We are to escape from domination by the splitting up of different stories; society is depicted as working much better through an unstructured variety of micro events, and a society of a multiplicity of centres is better than a consciously planned society. Whilst big stories are bad, little stones are good. All we can expect of law is its involvement in a multiplicity of small batdes, moves in a social order comprised of a vast diversity of competing language games.
The downside of this imagery is that social life may instead become a civilized Hobbesian war of all on all – mediated by the weapons of law. Instead of enabling justice, giving law to the people encourages litigation upon litigation. Without a belief in the grand narratives, life becomes a mass o£little games; yet Lyotard appears oblivious to the soulessness of this post-modern gaming. In his analysis, the grand narratives stand accused of legitimating the vast political programmes of the communist party or programmes of domination (the Cold War), whilst litde narratives are associated with localised creativity. But from another point of view, such as that of the American critic Fredrick Jamerson, the games of post-modernity are simply pastiche and doom us to schizophrenia.11 Jamerson defines post-modernism as a nostalgia for the past where, at the same time, we seem to lose our ability to locate ourselves historically. We become incapable of embedding ourselves in a time-space contingent that makes sense. How then can we commit ourselves to social projects, since to commit to a social project means to commit oneself to a certain continuum of commitment and hope?
In similar terms, references to totality and fragmentation, to the dialectic of globalism and localism, run through post-modernist jargon. In a sense, post-modernity denotes a feeling of loss, in that we can no longer grasp what is going on in society, or indeed the globe as a whole, yet at the same time we need to know what is going on at this level of totality in order that we can say that it is no longer possible to say what is going on. Thus, whilst it is fashionable to say that there is no single theoretical discourse which is going to offer us explanations of all forms of social relations and make possible legitimate modes of political practice and legal intervention, this itself is, reflexively, a theoretical understanding of totality.12
Along with the realisation of contingency and the dreams of dynamic flexibility, the post-modern cultural consciousness is obsessed with the process of deconstruction (heavily influenced by the projects of Jacques Derrida). Deconstruction enters jurisprudence first through the law’s textual nature, and, secondly, through the modernist (functional) linkage of law with social structure. By asking a continual series of questions, deconstruction seeks to sap the strength of a social structure whose substance lies in the prohibition of asking. There are two forms of deconstruction:
(i) The deconstruction of the text. It is a commonplace that the study of law and the transmission of the law involves texts. To search for the truth of the law is to engage in the interpretation of texts. Do the texts of law contain the meaning of (the) law?13 Deconstruction is the technique of showing that any settled law of the text is open to destabilisation. Every interpretation which tries to replace the openendedness of the basic text with a final – authoritarian – interpretation usurps the life of the text with an early death. Instead of finality, deconstruction reads every interpretation as either enriching or lessening the potential of the original text, adding or subtracting from a reservoir of meaning, but deconstruction requires that any reading be the subject of further and further study. Deconstruction announces that the goal of reducing the meaning(s) interpreted in a text to any one single latent referent is not only intellectually bankrupt but dangerous.
(ii) The deconstruction of the social order. To repeat a claim advanced against the legal positivism of HLA Hart, much of mainstream jurisprudence treats the contingency of late modernity as the normal and downplays the role of power behind the law. In his deconstructive reading of law, Derrida (1992) returns the foundations of modern anglo-american jurisprudence to the realist constructionism of Hobbes. Derrida returns to law the concept of force,14 thus reversing the story of Hart – namely to avoid Austin’s centrality of power to law – to tells us of a fatal mystery beneath law’s presence. All forms of legitimation can be deconstructed – as with the final ‘as-if nature of Kelsen’s basic norm, or the rule of recognition of Hart – at some stage there is, quite literally, no grounding for law. Justice is only the search for justice – it cannot ever be securely ascertained (except by our contingent agreement upon some procedure of recognition – which might always have been some other). As a result:
Since the origin of authority, the foundation or ground, the position of the law can’t by definition rest on anything but themselves, they are themselves a violence without ground. Which is to say that they are in themselves unjust, in the sense of’illegal’. They are neither legal nor illegal in their founding moment. They exceed the opposition between founded and unfounded, or between any foundationalism or antifoundationalism. Even if the success of performatives that found law or right … presupposes earlier conditions and conventions … the same ‘mystical’ limit will reappear at the supposed origin of said conditions, rules, or conventions, and at the origin of their dominant interpretations (1992: 14).
For Derrida deconstruction is a form of humanism,15 decoiistniction’s uncovering of the infinite regress of truth’s being is not a denial of the task of enlightenment, but a call to remember that the task of philosophy is not jto cap aire truth but to enable us to live in the spirit of truth. To live amidst the process of deconstruction is the fate of the modern person who retains both a critical distance from acquiescing in the power of the sword,16 and who seeks to unpack the normalising process of everyday discipline.17
Beyond deconstruction lies the mystery of the jurisprudential quest. In a world where everything can be doubted, where justice is authenticity – rather than guarantee – the burden of existence moves, inescapably upon our shoulders.
Through everyday academic and professional practice the lawyer plays the game of rational reconstruction – doctrine is developed, sometimes new kinds of law are won – such as ‘Restitution Law’ – out of the battles of legal language games. Law’s effects are either raised in our concern or forgotten. In this process of playing the games of the text(s) and creating the text(s) of the game(s) the words of Marx – that the law book was the people’s bible book of freedom – become both a hope and a mirage. Instead Wittgenstein’s injunction that henceforth the only place where philosophical problems could be tackled and resolved would be the railway station looks more apt. Post-modern life is a life on the run in conditions of great performability.
Do the games have any stability? Other than the temporal satisfaction or frustration of the players desires? It is ironical to see in Hart’s amoral theory of rules and games the prophet of post-modernity. Out of the structure of rules, the game is given order and the game develops its order. The order may hang over the heads of the players as if they were natural laws, but their structure is born ever anew informed by the ‘authorities’ willingness to develop the game and the players’ willingness to obey the rules. If the desire to play the game by the rules were to dissipate, then the structure and foundation of the game would evaporate. Herein lies the attraction of Hart’s liberalism: all of social order ought to be like a game (although, of course, it is what few, if any, real orders are in reality). In the context of the game, and no matter how meticulously the rule-bound order is observed, discipline is never considered or experienced as oppression, rather it is the context of judging worth and skill, and the penalties applied are judged mistaken or apt, but never seen as enslaving. The ideal liberal order is that which enables, empowers, and which comes with knowledge of how to continue and develop the player’s projects. The order conjured up by the play of games appears so attractive that no late-modern order can avoid stealing some of its seductive power and speak of carrying out its obligations as normative, of moving as the rules command, as role-playing, of hiding the coercion if the law as being merely the effects of the rules of the game.
One cannot, of course, play the game and subvert the rules; this is the paradox of the law of the game. To play a game is to play by the rules; there is no way of playing other than by the rules. To fail is to cheat, and that is not to play. One cannot be sceptical concerning the rules of the game; one can only constructively interpret them (Dworkin). One cannot move in such a way as to transgress the game’s rules without leaving oneself open to the (justified) penalty; one can only leave the game, refuse to play, or develop another game.
The games of life, the games of law respond to the need for recognition. Jurisprudence as the search for the truth of law, is the desire for wisdom. That humanities follow desire, rather than instinct, is the source both of our power and our existential problems. Through speech, desires one articulated, through the traditions of reason we seek to encode those most ambivalent of all human artifacts; the ideas of dignity and the sacred. The language-games of contemporary jurisprudence speak to the multi-focused nature and sources of these desires. Desire becomes mobile, transitory, unfocussed or, put more correcdy, moves in a continual state of (re)focusing.
But we should remember that the games of the post-modern, like the games of the pre-modern, are not self-sustaining or ahistorical. In the games of post-modernity, as with the Chariot races of Classical Rome portrayed on the cover of this text (from the etching of the painting by the Spanish artist Ulpiano Checa, 1891), it matters whether one is a slave or a freeman, a winner or loser. It matters who gains from the performance and what the stake of the rulers is; it matters what the position of the game in the social order is. The games of the post-modern may again be games of paganism (Lyotard and Thebaud, 1985) – for who in good conscience would wish to reinvent God – but having looked into the abyss at the heart of modernism – there is no need to flee from the challenge of deconstruction – to face the irreducible mystery of the sacredness of being. To humanise the claims of reason – which post-modernity dislocates and lessens – we can use in everyday life the claims of Humean empathy and sympathy, but we also need a transcendental signifier. Perhaps in the post-modern condition, we must acknowledge the impossibility of escaping from our existential inadequacy; we need to recognise the mystery of a depth we can do little other than to call the realm of the sacred. That we will always be defeated by our attempts to know it, is no reason not to live by its spirit. Thus the challenge of the post-modern is to continually ask the meaning of being human, in full consciousness of the fact that any answer offered, and any social order thereby constructed, is only a temporary respite, an embodiment of some of our desires, solace to our fears.
1 What is post-modernity? It is clear to most commentators that radical changes have occurred in social order over the last 30 years. To describe these changes social theorists have coined various labels including the Media Society, the Society of the Spectacle, the Consumer Society, the Bureaucratic Society of Controlled Consumption, the Post-industrial Society, the globalised society, the society of advanced world capitalism, the post-capitalist information order, and lately, and most fashionably, the description of post-modernism. Certain key writers are responsible for this term, among them Jean Francois Lyotard (1984), who, in a well known book The Post-modem Condition, coined the term postmodern to reflect changes in the level of science and technology, in particular the development of computers, mass communication and increasing emphasis upon language in social and cultural studies. For other writers, post-modernity is characterised by a feeling of extreme ambivalence to the hopes and social structures of the last 200 years; a mood of nostalgia; cultural relativism; moral conventionalism; scepticism and pragmatism; a dialectic of localism amidst globalism; ambivalence towards organised, principled political activity; and a distrust of all strong forms of ethical or anthropological foundations. Above all, certain commentators suggest (for example Eagleton, 1996), it is the feeling of failure and deep confusion where next to go, either personally, or in terms of striving to create social projects aiming at a just society.
2 As Jacques Derrida (1994: 85) put it in his argument for the continual need for a tradition of critical rationality: ‘Instead of singing the idea of the advent of liberal democracy and the capitalist market in the euphoria of the end of history, instead of celebrating the “end of ideologies” and the end of the great emancipatory discourses, let us never neglect this obvious macroscopic fact, made up of innumerable sites of suffering: no degree of progress allows one to ignore that never before, in absolute terms, never have so many men, women and children been subjugated, starved or exterminated on the earth.’
3 I use the phrase ‘central-european Jewish’ in acknowledgement of the condition Kafka reproduces of a subject who is asked to be at home everywhere and anywhere and can not feel safe anywhere. Kafka’s writings reflect his own beingness, specifically that of an extra-historical homeless condition, a condition of location not within the traditional constraints of time and space – a particular socio-cultural identity, as Zimmcrmann defines it: ‘He was no Czech, he was no German. This fact, through substraction and the merciless syllogism of Prague politics, made him a jew’ (quoted, Bauman, 1991–180, upon whom I draw for my understanding of Kafka’s personal situation).
4 In part, Kafka was relating aspects of being Jewish (many have claimed that the essence of being Jewish is that of a permanent stranger or being everywhere out of place), but the story of the Jewish identity in organised central european modernity looks increasingly like the harbinger of the identity of the subject of the post-modern condition.
5 Take the sense of language. Kafka wrote and spoke German. His participation in that linguistic community did not give him any sense of settled identity, rather it was a technology.
6 The experience of the German jews (and other European jews who came under Nazi control) points to the ever-present possibility of the collapse of the ‘freedoms’ which modernity has created. In Long I Have Looked For The Truth (contained in Bretolt Brecht, 1980) the German Jewish poet Bertolt Brecht recounts that he had long looked for the truth of man’s social life, a life that is crisscrossed, tangled and difficult to understand. But he strove to tell it as he found it. However, the Nazi’s came and shot at the poor and those who strove to tell of complex truths. As Brecht relates, the Nazi’s took both ‘truth’ and material comforts:
‘From me they took my litde house and my car
Which I had earned by hard work.
(I was able to save the furniture)
When I crossed the frontier I thought:
More than my house I need the truth.
But I need my house too. And since then
Truth for me has been like a house and a car
And they took them.’
7 Modernity was an attempt to create a just society of organised and transparent structure – a world of coherent practices organised around rules, where the rules themselves took their legitimation from a belief in some underlying structure or their inherent functionality, or in terms of their purity. The post-modern condition is ushered in with the growing realisation of the lack of deep structure. The mainstream of politics in the post-modern condition sees the desperate attempt to avoid ideas and return political speech to common sense. On opposing flanks are, on the one hand, those who argue for the benefits of radical pluralism and diversity; whilst on the other hand, we witness the most grotesque ethnic cleansing and search for secure identities – the rise of new tribalisms. But post-modernity is no return to the pre-modern. Unlike the pre-modem world of the ancients, it respects no absolute boundaries except those which are themselves the creation of law (for example, human rights, international law). As Nietzsche recognised, this implies that law is a guarantor of social structure, since within this world there might well be nothing natural which can never be transgressed. Consequently, this world might actually be meaningless without the simple assumption and tradition that it is meaningful. Additionally, however, as Foucault (1977; 1979) alerted us, the power of the sword of law, is in partnership with the processes which render contingent social practices ‘normal’, and encourage us to accept socialisation into the ‘norm’.
8 As Richard Posner (1981) a leading exponent argues ‘The most important thing to bear in mind about the concept of value is that it is based on what people are willing to pay for something rather than on the happiness they would derive from having it … Equivalently, the wealth of society is the aggregate satisfaction of those preferences (the only ones that have weight in a system of wealth maximization) that are backed up by money, that is, that are registered in a market’
9 In Lyotard’s reading, two great myths or narratives that have served as justification of institutional scientific research are that of the liberation of humanity and of the speculative unity of all knowledge The first of those narratives is a political militant activist one, the second is based around the concept of totality under the idea of a system. The first of these narratives, humanity, is the hero of social progress. The state uses narratives of freedom, every time it assumes direct control over the training of the people under the name of the nation in order to point the people towards progress. But these master narratives no longer function to the same degree in contemporary society. The grand narrative for Lyotard has lost its credibility regardless of whether it is speculative narrative, or a narrative of emancipation; in this space post-modernism arrives. The declining grip of narrative progress, shifts the emphasis from the ends of action to its means, while we see an explosion and different kinds of technics and technologies. The criteria for legitimation changes Lyotard argues the goal in science is no longer truth but perfonnivity. The ethos of the modern scientists, technicians and the design of instruments are orientated not to find truth but to augment performing power. Educational policy changes to become more functional, the emphasis is on skills, rather than ideals. Knowledge is no longer transmitted once and for all to young people, rather it becomes an a lá carte menu available to adults as part of their job retraining in continuing education. Knowledge, along with the capability to doubt, becomes something translatable into computer language and the traditional teacher is replaced by memory banks and teaching intrusted to machines linking memory banks, libraries etc and computer data banks to terminals which are placed at the student’s use and the practitioner is disposed of. The driving force, however, behind change is no longer ‘is it true?’ but ‘what use is it?’, ‘is it saleable?’. Consumerism, it appears, becomes a dominate motive of the post-modern writer
10 Science is supposed to rely upon objective criteria, however, Lyotard argues, scientific knowledge cannot know, and make it known that it is the true knowledge without resorting to other narrative kinds of knowledge, which from its own point of view is actually no knowledge at all, in short, the truth of the scientific depends upon the known truth, the narrative. Science must pass itself off as the largest story in town and the State’s own credibility is based on that epic story.
11 Jamerson uses the term schizophrenia to denote a feeling of a more intense experience of the-very-given-present which presents, however disorientatingly, a fragmentation or set of perpetual pressures of temporal and discontinuous experiences. Instead of the various events which impinge upon us being mere problems on a coherent life course, events are dislocated intrusions which threaten to arouse reactions which will split our very being.
12 The rejection of totality by Lyotard is itself a rather large narrative, although it, of course, stresses a fragmentation of language games, time, the human subject and society itself. But what do we find, what is the mood by which we cope with this dissolving of unity, what can give coherence and yet autonomy to individuals work?
13 Note that the search for the meaning of being through the study of the texts of that being stems from the study of’the word of God*. In the Judaic, Christian, Muslin traditions, the gift of god lies in his provision of texts for mankind; texts which appear to change, develop and reveal a multiplicity of meaning(s) every time they are interpreted. Only by stabilising the tradition of interpretation – by creating a sect – can the canons of interpretation and the resultant meaning(s) be stabilised.
14 Derrida’s text is dense but repays close analysis He begins by noting an english expression ‘to enforce the law’: ‘The word “enforceability” reminds us that there is no such thing as law (droit) that doesn’t imply, in itself, a prion, in the analytical structure of its concept, the possibility of being enforced, applied by force. There are, to be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force, whether this force be direct or indirect, physical or symbolic, exterior or interior, brutal or subtly discursive and hermeneutic, coercive or regulative, and so forth’ (1992: 5).
15 Seminar, Queen Mary and Westfield College, London, 1995.
16 One might say that, in this respect, deconstruction is to take HLA Hart’s critical citizenship test to the extreme, and in contrast to those who assert that it is usually a good thing to obey the law.
17 Another form of inquiry related to deconstruction lies with the critical analysis of what Foucault called, in the section concluding the first volume of the History of Sexuality, the ‘Right of Death and Power over Life’; the exercise of’bio-power’ or the disciplines of the body and the various extra-legal forms of regulating ‘normal’ life in the population (the disciplines of physical health, beauty, sexuality, mental health, in short normalacy as opposed to the deviancy which can only be understood by contrast to the ‘normal’).