Postmodernism and legal education

In 1997 a man by the name of Dennis Arrow published an assemblage of more than 200 pages of text in the Michigan Law Review under the title “Pomobabble: Postmodern Newspeak and Constitutional ‘Meaning’ for the Uninitiated”. Although the text claimed to be defining postmodernism and legal postmodernist jargon, it did everything but that. Instead, it was from the outset clear that the text was nothing but a silly attempt to poke fun at terms, formulations and styles that have become, for better or worse, collected under the signifier of postmodernism. Had this text constituted only a sort of laughable aesthetic game, things would have perhaps been less problematic. However, as Douglas Litowitz argued at the time, the Michigan Law Review article and others like it, formed part of a growing conservative, macho backlash against postmodern thought. Consider, for instance, the “postmodern” definition Arrow gives of rape: “Doing anything ‘we’ don’t like (since it is not a crime of sex, but power (but not of course ‘power’), why limit it?; writing anything ‘we’ don’t like; thinking anything we don’t like; attempting to think anything ‘we’ don’t like … ” Apart from the fact that I know of no postmodernist who endorses such a definition of rape, the ideological undergarment is showing here — in an inverse way, Arrow makes it quite clear that for him rape is not a crime of power, it’s a crime of sex. Thus, in Arrow’s very attempt to represent a non-existing postmodern definition of rape as part of a seemingly harmless aesthetic game with words, he reveals his own deeply conservative politics according to which rape is experienced as a sexual act by its victim (a highly contested, deeply patronising assertion).

Moreover, from precisely the vantage point of the “uninitiated”, this kind of scholarship was particularly insidious, because it was aimed at a straw version of postmodernism, not held by any of its proponents who had actually studied its literature. In his reply, Litowitz set out to defend postmodernism against the backlash, summarising the key philosophical underpinnings of postmodern theory. Here Litowitz refers to another text, published in the Southern California Interdisciplinary Law Journal, in which the author claims that postmodernism is rooted in chaos theory in the sciences. The author characterises postmodernism as a “pollutant”, causing the “erosion of reasoned principles among today’s generation of law students” because it holds that there can be “no truth beyond the text itself”. This is clearly an allusion to Derrida’s famous phrase “il n’y a pas de hors-texte” (translated as “there is nothing outside the text” but more accurately stated as “there is no outside-text”) which was never a claim that there is no truth beyond text, but rather that interpretation / reading always occurs within a given context. This is hardly a nihilistic, meaning-erasing formula, only a reminder that humans are interpretative creatures, that “there is no unmediated access to some primordial truth”.

It is as if this relentless backlash against postmodern styles is rooted in an irrational fear that postmodern discourse somehow possesses such power that it can bring the entire edifice of Western law to its knees in one fell swoop. As Litowitz argues, postmodernism has “the more modest goal of reminding us that our legal categories are contingent and fluent, and that they can be reconstructed if found to rely on untenable and outdated conceptions of human nature, reason, and truth”. If it was not for this reminder, we would perhaps still live in a society that once upon a time (oops, is that a postmodern formulation?) criminalised adultery and homosexuality.

The man responsible for the introduction of the term “postmodern” into the Anglo-American world, Jean-Francois Lyotard, would certainly have balked at the assertion that postmodernism is the theory of the meaningless, random generation of texts — another comic strip version of postmodernism relied upon by the various “postmodernism generator” websites, which string together random sentences, presenting them in an essay form as an example of postmodern writing. In The Postmodern Condition: A Report on Knowledge (1984) Lyotard asserts that postmodernism is “undoubtedly part of the modern”. For Lyotard postmodernism is a mode of suspicion, of questioning that which has been “received” and, ironically, he asserts that a work can only become “modern” if it is first postmodern. What Lyotard means here is that a work must be entirely novel in order for it to eventually inscribe itself into the aesthetics of modernity: “A postmodern … writer is in the position of a philosopher: the text he writes … [is] not in principle governed by pre-established rules, and they cannot be judged according to a determining judgment, by applying familiar categories to the text or to the work. Those rules and categories are what the work … itself is looking for. The … writer, then, [is] working without rules in order to formulate the rules of what will have been done.” The great philosophical systems of modernity — those of Kant, Hegel and Marx would not have been possible without this ungoverned search for new categories and rules.

For Lyotard postmodernism stands for the crisis of legitimation in the positive sciences: knowledge and its institutions have always developed “grand narratives” with which it legitimised itself. Postmodernism stands for the collapse of these metanarratives it is, as Lyotard asserts, the “crisis of narratives”. For Lyotard the two main grand narratives of the modern age was the narrative of history as the emancipation of the rational subject and, second, the narrative of the unity of all speculative knowledge. For most of the modern age in South Africa the grand narrative, which was used to legitimate a vast body of instrumental knowledge was the narrative of so-called benign separate development, supplemented with a significant narrative strand of the “destiny” of the racially superior Subject. As Patrick Lenta notes in a 2001 article published in the South African Journal on Human Rights, “atrocities such as apartheid … whose protagonists claimed to be rationalising society, have demonstrated the mercurial status of (Enlightenment) reason”. In this article, Lenta described South Africa not only as post-apartheid, but also as postcolonial and, indeed, postmodern. Lenta contends that South Africa emerging from apartheid, has joined the era of globalisation with its aesthetics of mass communication. In this sense post-apartheid South Africa is also postmodern South Africa. In a second sense, South Africa is postmodern in Lyotard’s sense: the new grand narrative of democratic liberalism cannot legitimate the discourses of transition in knowledge and politics. The Enlightenment version of justice is, moreover, wholly insufficient to account for transformative justice. Yet, as Lenta asserts, the discourse of postmodernism must respond to the unique needs of the South African locality if it is to exercise as a critical hold over the representational excesses of liberalism.

In law faculties across South Africa there is currently a pervasive emphasis on skills development, skills of writing, reading and research. I am not sure to what extent this emphasis is rooted in a deeply irrational fear on the part of the practising status quo that somehow the postmodern bogey man has the power to erase all meaning from South African legal practice. Postmodernism in legal education has never attributed to itself this sort of power, on the contrary, postmodernism as a discourse is supplementary and critical: it exposes the epistemological failures of the modernist project in the name of a justice that is not universal but particular and context-sensitive. Moreover, postmodernism insists that there is always more justice to be done, that justice in this sense, is always still to come. As regards the imparting of skills in the law school as part of the project of a post-apartheid South Africa, Lyotard offers us valuable advice: “If education must not only provide for the reproduction of skills, but also for their progress, then it follows that the transmission of knowledge should not be limited to the transmission of information, but should include training in all of the procedures that can increase one’s ability to connect the fields jealously guarded from one another by the traditional organisation of knowledge … the idea of an interdisciplinary approach is specific to the age of delegitimation … the relation to knowledge is not articulated in terms of the realisation of the spirit or the emancipation of humanity but in terms of the users of a complex conceptual and material machinery and those who benefit from its performance capabilities. They have at their disposal no metalanguage or metanarrative in which to formulate the final goal and correct use of that machinery. But they do have brainstorming to improve its performance.” In a context of cultural and linguistic plurality on the one hand, coupled with the hegemony of English and the Anglo-positivist mode of writing as university language/communication, on the other, it is perhaps time to re-recognise and strongly assert the pluralities that are forced into conformity by a somewhat anachronistic attempt still to totalise knowledge and hence, the university. Without a reproblematisation of the latter, the university without condition as Derrida used to refer to it, remains but a chimera.