Postmodern Forms of Justice
POSTMODERN THOUGHT BEGINS with a rejection of many of the core assumptions and ideologies developed during the Enlightenment period.1 It questions the privileging of grand narratives, the notion of the individual, a dominant and universal Truth, linear logic and reasoning, possibilities of universal and stable foundations, and the neutrality of language.2 It suggests maintaining a skeptical eye toward the possibility of developing conceptions of justice that are grounded in self-evident truth claims founded in prevailing and dominant ideologies. The possibilities of a bona fide conception of postmodern justice, however, are only recently emerging.
Several key issues have emerged for those who are attempting to develop a postmodern rather than a modernist form of justice.3 First, postmodern theorizing in justice studies is skeptical of any possibility of establishing foundations. That is, attempts to ground any reasoning, rationale, or logic on some objective measure is dubious. For example, the reliance on a natural state or natural rights pre-given by God, or on reason itself, is question begging.
Second, postmodernists tend to conduct external critiques. Internal critiques include those that take a practitioner's point of view (e.g., judges and lawyers) in criminal justice (Litowitz 1997, 20–34). Dworkin's contributions to the literature, for example, are from an internal perspective. postmodernists do not privilege the views of practitioners of the legal system; they stand outside the system in critiquing it.4
Third, postmodernists would oppose positive jurisprudence; this opposition would extend to conceptions of justice. “Positive” refers to the practice of practitioners and legislators in articulating a particular normative framework that will then be the basis of decision making by judges. A normative framework defines what falls within the normal and what is abnormal or deviant.
Finally, modernists are more likely to rely on passive notions of justice, whereas postmodernists incorporate an active conception of justice (see Whyte 1991, 124–126). A passive justice takes place where human beings are seen as not owing affirmative duties (i.e., care) to the other, outside of civil rights issues.5