Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
22 June 2012

On postmodernism and critical legal theory

Something for the week-end. Today’s post is admittedly more “philosophical” than it is “legal” or “political”, although I decline to be subjected to the belief that there is or can be a rigid separation of the three. This post is a shortened version of a seminar I gave in my department a few years ago when it became apparent to me that a dominant understanding of postmodernism prevailed in my context – an understanding according to which postmodernism is the evil agent of nihilism, meaninglessness and total destruction. I make two main claims about postmodernism in this post: first, that postmodernism is not one, monolithic approach to sociality and, secondly, that postmodernism, like all forms of thought, has a history. I also indicate that there is indeed an ethics of the postmodern.

In 1979, the French thinker, Jean-Francois Lyotard, published a book entitled La condition postmoderne: rapport sur le savoir. In 1984, the book was translated into the English language as The Postmodern Condition: a report on knowledge. The book is said to have introduced the word “postmodern” into the English speaking world, although Lyotard had argued in the original French edition that the word was already in current use on the American continent  among sociologists and critics. The object of The Postmodern Condition was, as the title quite clearly indicated, an investigation into the condition of knowledge, particularly in the social sciences. The locale of this investigation was, as Lyotard writes in the introduction “the most highly developed societies”. To describe the condition of knowledge in these most highly developed societies, Lyotard introduced the term “postmodern”. The argument thus was that knowledge in the developed world or in the West had reached, by the late seventies, a state or condition that could be described as postmodern. What, if anything, did Lyotard mean when he availed himself of this description? That is to say, what did the adjective “postmodern” intend to say about the condition of knowledge?

It turns out that Lyotard gives a rather succinct if incomplete answer. He simply stated (although admitting that he was “simplifying to the extreme”): “I define postmodern as incredulity toward metanarratives.” Metanarratives? What on earth did that mean? A simple answer could be ideology, but let’s see what Lyotard had to say about the modern. He writes as follows: “I will use the terms modern to designate any science that legitimates itself with reference to a metadiscourse of this kind making an explicit appeal to some grand narrative”. Lyotard proceeds to give us four examples of these grand narratives. First, he mentions the dialectics of Spirit, second, the hermeneutics of meaning, third, the emancipation of the rational or working subject and fourth, the creation of wealth. Recall that one of the examples Lyotard mentions is the emancipation of the rational or working subject. This is clearly a reference to what has been called the dialectical materialism of Karl Marx – the idea that the fundamental course and progress of History (as the series of significant events in time) can be explained as the emergence of the classless society. In other words, fundamental events of History are events that can be explained with reference to class struggle. Another way of putting it is that the meta-narratives hold that all knowledge and experience over time progress toward the end of History, which in this example coincides with the classless society. In this context, Francis Fukuyama’s post-1989 claim that liberal democracy and neoliberal capitalism represent the End of History was as premature as the 2008 global financial crisis was unexpected.

So, to return to the definition of the postmodern as incredulity toward metanarratives and the meaning of this phrase, the following can be surmised from what Lyotard writes: if modernity is the name of an age in which science or knowledge invented its own legitimation discourse in the form of the grand narratives of philosophy, then the postmodern marks the age in which science or knowledge casts off or separates itself from its reliance on the grand narratives. Some readers interpret Lyotard’s phrase as the end of the grand narratives in the sense that they are no longer constructed. But this reading is mistaken. Incredulity toward master narratives rather means suspicion about the grand narratives of philosophy. And, of course, this suspicion about master-narratives arises in the aftermath of the so-called “disasters of modernity”: the Holocaust, the subsequent collapse of institutionalised communism in the former USSR and the disasters of the colonial project as a mission civilisatrice.

That knowledge has cast off its reliance on the grand narratives of philosophy, Lyotard calls “undoubtedly a product of progress in the sciences”. This is a progress that has, as the other side of the coin, precisely the crisis of metaphysical philosophy – a crisis that originates in the work of Friedrich Nietzsche and is developed to devastating proportions in the work of Martin Heidegger. In the good old days of modernity, metaphysics was, simply put, the contemplation of that which is present to us, the thought of something as opposed to nothing. The contemporary metaphysician, Michael Loux describes metaphysics simply as the attempt to ‘identify the nature and structure of all that there is’. Differently put, metaphysics refers to the study of the essence of being, of what makes a particular being what it is, of what remains constant over time in different beings. The thought of these essences of beings allowed us to classify beings, to work out different kinds of being and to divide them into categories of being. The thought of universals is precisely this, so metaphysics could also be described as the thought of universality and therefore, the thought of eternal validity or truth. In political philosophy, metaphysics stands for the idea of the linear, unitary progress of humanity toward a fixed point. This fixed point has different names. Kant calls it the realm of ends, in Hegel it is the self-actualisation of Spirit and in Marx it is the dictatorship of the proletariat. Perhaps we could simply call it Justice.

The dawn of contemporary postmodernism is succinctly described by Gregory Smith as “fundamentally a sign of disintegration, of transition, of waning faith in the modern ideas of Reason and Progress, and the Enlightenment project in general”. A crucial moment in the history of the “emergence” of postmodernism is Adorno and Horkheimer’s philosophical fragments, published under the title Dialectic of Enlightenment as the product of the authors’ wartime exile. In this work Adorno and Horkheimer note that Enlightenment, understood in the widest sense as the advance of thought, has always aimed at liberating human beings from fear and installing them as masters. “Yet the wholly enlightened earth radiates under the sign of disaster triumphant”. “How can this be, the authors ask. How can the progress of modern science and medicine and industry promise to liberate people from ignorance, disease, and brutal, mind-numbing work, yet help create a world where people willingly swallowed fascist ideology, knowingly practiced deliberate genocide, and energetically developed lethal weapons of mass destruction? And keep doing so. Reason, Adorno and Horkheimer answer, “has become irrational.”

Postmodernism rises, then, out of the rubble pepetrated in the name of the will to essence characteristic of the meta-narratives. Because it is primarily a critique of nationalism, essentialism and totalitarianism, postmodernism in all its guises focuses on the question of difference. In the work of Levinas and Derrida the question of difference becomes an ethics of difference, an ethics of responsibility for the Other. It is no rejection of rationalism and reason, rather, it supplements the cherished jewels of the Enlightenment by showing that reason is not and can never be total.

It is true that the most unsophisticated version of postmodernism exists as the ethical and cultural nihilism of late capitalist neoliberalism. This is what I call “shopping” postmodernism, following Costas Douzinas and Adam Geary. In shopping postmodernism, the only law that gives itself is the law that all that there is left to do is, well, shop. This is not the postmodernism of thinkers such as Levinas, Derrida or Jean-Luc Nancy, because, in its worst form, it is without any form of critical reflection or ethical reflexivity whatsoever. I hasten to point out that the work of thinkers like Derrida in no way amount to an escape from metaphysics, it is rather that this work operates at the limit of metaphysics – it amounts to a fundamental questioning of that which we think we know, it is an enquiry into how we know, into the conditions of possibility of knowledge.

In post-apartheid law and critique, commentators have pointed out that the relationship between an ethics of difference and a new law was thrown into relief with the enactment of the Constitution. These writers argue for a progressive application of the Constitution, for an understanding of the post-apartheid legal community as a community of becoming and not a community of ethnic or cultural essentialism, for an ethics of alterity and a criticism of the abusive centralization of political power. They have no and do not give any simple and final answers. For this they are criticized and maligned by those who continue desperately to cling to a world of certainty and absolute truth which no longer exists and perhaps never did exist. To quote Derrida: “Those who wish to simplify at all costs and who raise a hue and cry about obscurity because they do not recognize the unclarity of their good old Aufklärung are in my eyes dangerous dogmatists and tedious obscurantists. No less dangerous (for instance, in politics) are those who wish to purify at all costs. One shouldn’t complicate things for the pleasure of complicating, but one should also never simplify or pretend to be sure of such simplicity where there is none. If things were simple, word would have gotten round …” Critical legal theory as a postmodern legal movement then, owes its debts to the disasters of modernity. It remains engaged with these disasters as a monumental fall from grace, in the perhaps naïve hope that, to paraphrase Santayana, we may yet learn from history, lest we are doomed to repeat it.

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