Academic journal article Harvard Journal of Law & Public Policy

From Postmodernism to Law and Truth.

Academic journal article Harvard Journal of Law & Public Policy

From Postmodernism to Law and Truth.

Article excerpt



Postmodernism and legal truth both merit serious attention. Properly understood, postmodernism provides an accurate picture of the current state of philosophical thought in the Anglo-American tradition. (1) As the reader will notice, my account of postmodernism (2) bears little resemblance to what passes for postmodernism in departments of literature and the pages of many American law reviews. (3)

This article has three parts. I begin by explaining postmodernism as a three-fold departure from modernism. Next, I explain how my account of the transition from modernism to postmodernism leads to a new conception of the relationship between linguistic meaning and truth. (4) Finally, as a corollary to the postmodern account of meaning just described, I present an account of the truth of legal propositions.


Modernism is traditionally associated with the Enlightenment, the period from the seventeenth to the eighteenth centuries when the authority of Church and Monarch were displaced by "rationality" as the organizational centerpiece of the social order. (5) Of all the disciplines, philosophy best provides a complete picture of the modernist worldview. There are three dimensions to this view:

1. Epistemological Foundationalism--Knowledge, this concept posits, can only be justified to the extent that it rests on indubitable foundations. Rene Descartes comes to mind in connection with this view. His opposite is best represented by the skepticism of David Hume;

2. Theory of Language--Language has two functions: It represents ideas or states of affairs, or expresses the attitudes of the speaker. A representationalist work would be Ludwig Wittgenstein's Tractatus. (6) The ethical prescriptivism of R.M. Hare (7) is consistent with Wittgenstein's account of factual discourse but makes a place for ethics as a discourse of recommendation;

3. Individual and Community--"Society" is best understood as an aggregation of "social atoms." Society is seen as an aggregation of self-interested social atoms (Adam Smith) or social atoms driven by the forces of class (Marx). (8)

Taken together, these three axes give us the following picture of modern thought:



Postmodernism is a matter of transcending the modernist framework without lapsing back into premodern forms of thought. (10) From the point of view of the three axes described above, postmodern thought transcends the framework within which debate occurs over the nature of language, knowledge, and social organization. To be sure, the movement from the modernist picture of knowledge to the postmodern view of the world was a gradual shift in perspective. It is no surprise that the shift begins on modernist terms.

From the seventeenth to the twentieth century, science developed in tandem with fierce philosophical debate over the degree to which "knowledge" is best thought of as empirical knowledge. (11) This is due to the empiricist basis of the most influential theory of scientific knowledge--positivism. (12) During the 1950s and 60s, the positivist picture of knowledge began to stress under the pressure of critique. Interesting, the first chink in the positivist armor resulted from a blow that came from within its own ranks, the thought of the philosopher and logician, W.V.O. Quine. (13) According to Quine, the picture of knowledge as a process of building from the simple to the complex, and the concomitant notion that knowledge is a matter of correspondence between word (concept) and world, had to be discarded. In its place, Quine substituted holism--the view that the truth of any one statement or proposition is a function not of its correspondence to the world, but of the degree to which it coheres with everything else we take to be true. …

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