This chapter first distinguishes between the modern and the postmodern conditions or eras with reference to the work by Jean François Lyotard, and then discusses two fundamental ideas underpinning modern law and legal theory: the rational and autonomous subject; and the clarity and objectivity of meaning of the legal text. Drawing on Michel Foucault and Jacques Derrida, it shows how postmodern thought questions these foundations of modernity, and, finally, discusses the practical significance of postmodern jurisprudence: its ability to provide answers to pressing questions of law and justice.
15. Postmodern Legal Theory
J. E. Penner and E. Melissaris
13. Critical legal theory
Critical legal theory rejects what is generally regarded as the natural order of things, be it the free market (in the case of Critical Legal Studies), ‘meta-narratives’ (postmodernism), the conception of ‘race’ (Critical Race Theory), and patriarchy (in the case of feminist jurisprudence). Critical legal theorists share a profound scepticism about many of the questions that have long been regarded as at the core of legal theory. This chapter touches on the first three of these movements. It first discusses the development of critical legal studies and then turns to postmodern legal theory, considering the views of Jacques Lacan, Jacques Derrida, Michel Foucault, and Jürgen Habermas. It then outlines the principal claims of Critical Race Theory (CRT), and considers the relationships between CRT and feminist theory and CRT and postmodernism.
7. Law and social theory
This chapter examines the subject of social theory and, in particular, the sociology of law and analyses the leading theories of a number of writers who adopt a ‘sociological perspective’. The theories of Roscoe Pound, Eugen Ehrlich, Émile Durkheim, Max Weber, Karl Marx, Michel Foucault, and Jürgen Habermas are discussed. Each espouses a different approach to the analysis of law and the legal system, but what they have in common is the attempt to explain the role law plays in society. Their contribution is an important one, although it is sometimes questioned whether the sociology of law has an adequate theoretical grounding.