From postmodernism to law and truth. .

AuthorPatterson, Dennis
PositionPanel I: Law & Truth: Pre-Modernism, Modernism, and Post-Modernism - Federalist Society 2002 Symposium on Law and Truth
  1. INTRODUCTION II. MAPPING MODERNITY III. POSTMODERN THOUGHT IV. MODERNISM AND LANGUAGE V. LAW AND TRUTH VI. CONCLUSION I. INTRODUCTION

    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.

  2. MAPPING MODERNITY

    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:

    [FIGURE 1 OMITTED]

  3. POSTMODERN 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. Quine stated his view this way:

    The totality of our so-called knowledge or beliefs, from the most casual matters of geography and history to the profoundest laws of atomic physics or even of pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges. Or, to change the figure, total science is like a field of force whose boundary conditions are experience. A conflict with experience at the periphery occasions readjustments in the interior of the field. Truth values have to be redistributed over some of our statements. Reevaluation of some statements entails reevaluation of others, because of their logical interconnections--the logical laws being in turn simply certain further statements of the system, certain further elements of the field.... But the total field is so underdetermined by its boundary conditions, experience, that there is much latitude of choice as to what statements to reevaluate in the light of any single contrary experience. No particular experiences are linked with any particular statements in the interior of the field, except indirectly through considerations of equilibrium affecting the field as a whole. If this view is right, it is misleading to speak of the empirical content of an individual statement--especially if it is a statement at all remote from the experiential periphery of the field. Furthermore it becomes folly to seek a boundary between synthetic statements, which hold contingently on experience, and analytic statements, which hold come what may. Any statement can be held true come what may, if we make drastic enough adjustments elsewhere in the system. (14)

    Quine's picture of knowledge of the external world changed the way people thought about the construction of knowledge. His achievement was to see knowledge not as a matter of foundations--building up from a bedrock (Cartesianism)--but as a function of one's ability to move within a holistic web (be it a web of theory or intersubjective practice). Because Quine changed the picture of knowledge from simplicity, reductionism, and foundations to holism, network, and totality, his epistemology is rightly characterized as "postmodern." Quine's embrace of holism, together with his pragmatism on questions of truth, (15) suggests comparison with the referential theory of language, the second of the three aspects of modernism displaced in postmodernity. (16)

    When it comes to language, postmodernism (17) does not present arguments against the modern, representationalist view. (18) Importantly, on a postmodern account of language, reference is not rejected. (19) Reference remains an element of the theory of meaning. But reference only enters the picture as a function of use. (20) To put the postmodern alternative in a nutshell, the modernist picture of Sentence-Truth-World is replaced with an account of understanding that emphasizes practice, warranted assertability, and pragmatism. (21)

  4. MODERNISM AND LANGUAGE

    Of the three axes that comprise the modernist framework, the linguistic axis is of paramount importance for law. In this section, I first describe this axis in more detail. I then advance a postmodern conception of the relationship of language to the world. The final section of the article presents an account of legal justification (argument) from the postmodern point of view.

    Broadly speaking, philosophy of language in the modernist tradition attempts to disclose the relationship between the word and the world (realism). In the modernist tradition, the principal function of language is representational--it depicts the way things are. States of affairs, which exist independently of mind, can be portrayed or represented accurately in speech or thought. In modernist terms, the question "What does this sentence mean?" may be translated as "What state-of-affairs does the asserted proposition purport to depict?"

    Wittgenstein's picture theory of language (22) is a good example of a representationalist theory of language. (23) Wittgenstein believed that sentences were statements of possible states of affairs. (24) For example, the sentence "I am sitting at my computer" expresses a proposition, which can or may correlate with a "state-of-affairs."

    The picture theory provides us with one expression of the dominant, modernist view of language as a representational medium. To the degree an asserted proposition depicts reality, the proposition may then be said to be "true." To the degree it fails accurately to depict reality, it is "false." Wittgenstein put it this way: "[T]his proposition represents such and such a situation. It portrays it logically. Only in this way can the proposition be true or false--it can only agree or disagree with reality by being a picture of a situation." (25)

    A modernist, representationalist account of language declares any given use of language to be successful--that is, it states a truth--if and only if it accurately describes the facts. But what of linguistic utterances that are not factual in nature? Consider statements such as "Killing is wrong" and "This painting is beautiful." As mentioned previously, the modernist tradition characterizes all non-factual...

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