| This manuscript provides a critical exploration of the positions on law and justice offered by five postmodern thinkers: Friedrich Nietzsche, Michel Foucault, Jacques Derrida, Jean-Francois Lyotard, and Richard Rorty. These diverse thinkers are discussed both individually and as a collective movement which is referred to as "postmodern legal theory." As an intellectual movement in legal studies, postmodern legal theory is characterized by two features: (i) it takes an 'external' perspective on the law, and (ii) it espouses a radical anti-foundationalism. This posture contrasts sharply with the dominant tradition in Anglo-American legal theory, which takes an 'internal' view of the legal system, and posits the existence of some foundations by which to justify particular laws and legal decisions.;The manuscript explores whether postmodern legal theory can offer a "positive jurisprudence," that is, a vision of a just state and a morally desirable legal system. The author concludes that postmodern legal theory cannot generate a "positive jurisprudence," but instead offers a "negative jurisprudence" which operates mainly as a critique of the existing legal system and as a critique of the conceptual framework for mainstream legal scholarship. The problem with the postmodernists' negative jurisprudence is that it obtains tremendous critical distance from the existing legal system only at the expense of failing to offer a program for reforming the system or for resolving problems as they are debated within this legal system (issues such as abortion, flag-burning, pornography, and gay rights).;The postmodern (external) perspective is so far removed from the language games in which lawyers and judges decide key legal issues that it leaves the internal practice of law untouched, so to speak. Further, the radical rejection of foundations precludes a starting place by which the postmodernists might erect a vision of the just legal system. In spite of these defects, the postmodern approach can make a limited contribution to legal theory by 'thinking the Other of the law.'. |
