The Emperor Has No Clothes: Postmodern Legal Thought and Cognitive Science

• Publication year: 2010

Georgia State University Law Review

Volume 23 j ^

Issue 2 Winter 2006

12-1-2006

The Emperor Has No Clothes: Postmodern Legal Thought and Cognitive Science

Scott Fruehwald

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Recommended Citation

Fruehwald, Scott (2006) "The Emperor Has No Clothes: Postmodern Legal Thought and Cognitive Science," Georgia State University Law Review: Vol. 23: Iss. 2, Article 6.

Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss2/6

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THE EMPEROR HAS NO CLOTHES: POSTMODERN LEGAL THOUGHT AND COGNITIVE SCIENCE

Scott Fruehwald

How comes it that human beings, whose contacts with the world are brief and personal and limited, are nevertheless able to know as much as they do know?

Bertrand Russell¹

Introduction

Postmodernism rules in contemporary jurisprudence. Relativism has vanquished natural law, and there is no truth out there. Objectivity is a sham. Each interest group has its own approach to law. Legal theory is dead. Anything goes. Nevertheless, some legal scholars persist in advocating traditional approaches to legal theory, believing that some limits exist on human conduct. Are such scholars misguided, or do they sense something intuitively wrong with postmodern jurisprudence and right with traditional approaches?

This paper will critique postmodern legal thought using insights from cognitive science-the science of the mind.² Cognitive scientists have shown that "the brain contains processes, biases, and knowledge structures that underlie how we perceive and act in the world. . . "³ The insights that cognitive science can bring to jurisprudence is the next frontier for legal philosophy. As Professor John Monahan has stated, "[T]he question I want to raise is whether evolutionary

1. Bertrand Russell, Human Knowledge: Its Scope and Limits v (Simon & Schuster 1948).

2. See Steven Pinker, The Blank Slate 31 (2002); see generally Paul Thagard, Mind: Introduction to Cognitive Science (1996). The subcategories of cognitive science include cognitive psychology, evolutionary biology, sociobiology, cognitive anthropology, neuroscience, etc. In the mid-1970s, the Cognitive Science Society was founded, and the journal Cognitive Science began. Id. at ix. For a detailed history of cognitive science, see generally William Bechtel, Adele Abrahamsen, & George Graham, The Life of Cognitive Science, in A companion to cognitive SCIENCE 1-104 (William Bechtel & George Graham eds., 1998).

3. Paul Bloom, Descartes' Baby: How the Science of Child Development Explains What Makes Us Human 32 (2004).

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psychology [a branch of cognitive science] . . . could play the same central role in legal scholarship for the next thirty years that economics has played for the past thirty."⁴ Yet, legal scholars have generally ignored the innovations of cognitive science.⁵ While a few scholars versed in sociobiology have brought some of the field's insights into legal studies,⁶ those working in this area have rarely applied the discoveries of their discipline to jurisprudence. The purpose of this paper is to partially rectify this lacuna.

Part I of this paper will examine postmodern legal thought. This Part will include a traditional critique of postmodernism and its most important element—strong moral relativism. Part II will then introduce basic concepts of cognitive science, and Part III will demonstrate how insights of cognitive science weaken the foundations of postmodern legal thought. Part IV will show the existence of universals in the human mind, which destroys the strong moral relativism underlying postmodernism. Finally, Part V will present an alternative to postmodernism's radical political theories, based on cognitive science.

I. Postmodern Legal Thought

This section examines postmodern legal thought. It begins by describing the essential tenets of postmodernism. Then, it briefly describes two of the major legal paradigms influenced by postmodernism—critical legal thought and Professor Richard Rorty's ethnocentric approach to culture. Finally, this section concludes by giving an overview of the traditional critiques of postmodern legal thought.

4. John Monahan, Violence in the Family: Could "Law and Evolution" Be the Next "Law and Economics"?, 8 Va. J. SOC. Pol'y & L. 123,123 (2000).

5. Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 colum. L. Rev. 405,407 (2005).

6. Margaret Gruter founded the Law and Biology movement in the 1980s. E. Donald Elliott, Law and Biology: The New Synthesis?, 41 St. LOUIS U. L.J. 595, 595-96 (1997). The movement centers around the Gruter Institute for Law and Behavioral Research, and it has included evolutionary biologists like William Hamilton, Robert Trivers, and Frans de Waal. Id. at 596.

7. Douglas A. Terry, Don't Forget About Reciprocal Altruism: Critical Review of the Evolutionary Jurisprudence Movement, 34 conn. L. rev. 477, 502 (2002).

2006] POSTMODERN LEGAL THOUGHT AND COGNITIVE SCIENCE 377

A. Postmodernism and Postmodern Legal Thought

This sub-section examines the central tenets of postmodernism and postmodern legal thought, beginning with its radically antifoundational and antitheoretical nature. This assertion leads postmodernists to believe that there is no universal knowledge on essential truth (moral relativism) and to postmodernism's emphasis of context and contingent political arrangements. Postmodernists also reject the autonomous self, and they believe that reason is a social construct. Finally, postmodernists rely on pragmatism, take a leftist approach to politics, distrust outcomes reached by popular sovereignty and consensus, and advocate for radical changes in the law.

1. Postmodernism's Radically Antitheoretical Nature and Its Rejection of Universal Knowledge and Essential Truths

Postmodernism and the postmodern legal thought that grew out of it is radically antifoundational, antitheoretical, and, thus, morally relativistic.⁸ As Professor Hutchinson has declared: "Postmodernism is a flat rejection of universal knowledge and an outright denial of essential truths."⁹ Similarly, Professor Schanck has asserted, "[Tjhere are no foundational principles from which other assertions can be derived; hence, certainty as the result of empirical investigation or

8. Douglas E. Litowitz, Postmodern Philosophy and Law 10 (1997) (explaining that postmodernists "deny the existence of a neutral and objective faculty of reason which can be used to generate first principles of morality and law"); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals* 74 Tex. L. Rev. 523, 527-28 (1996) (discussing perspectivism, noting: "On this view, all judgments are contingent cultural products that cannot be 'objectively true.'"); Allan C. Hutchinson, Identity Crisis: The Politics of Interpretation, 26 new eng. L. rev. 1173, 1184 (1992); Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Interpretation, 65 S. Cal. L. Rev. 2505,2508 (1992); see also Jean-Francois Lyotard, The Postmodern Condition: A report on knowledge xxiv (Geoff Bennington & Brian Massumi trans., University of Minnesota Press 1984) (1979). Professor Litowitz has pointed out that "postmodern legal theory does not revolve around a particular work functioning as a kind of manifesto, nor is there a key postmodern thinker." litowitz, supra, at 3. Professor Litowitz identifies the major Postmodern philosophers as Jacques Derrida, Michael Foucault, Jean-Louis Lyotard, Jacques Lacan, Fredric Jameson, and Richard Rorty and the major Postmodern legal theorists as Stanley Fish, Pierre Schlag, Peter Goodrich, J. M. Balkin, Richard Delgado, Drue ilia Cornell, Duncan Kennedy, and Allan Hutchinson. Id. at 1.

9. Hutchinson, supra note 8, at 1184.

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deductive reasoning is impossible." He has added, "[T]here can be no such thing as knowledge of reality; what we think is knowledge is always belief and can apply only to the context within which it is asserted"¹¹ Thus, postmodernism "uses the techniques of metaphor, narrative, and storytelling for discovering surprising new insights . . . it justifies the use of 'situated' and 'local' critiques as a means for

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decentering foundational theories."

Because of their rejection of universals and adoption of moral relativism, postmodernists stress the importance of context. Drawing on Wittgenstein, Professor Williams has written the following:

[Understanding a rule system entails understanding the language game or form of life of which it is a part: rules function to explain the conventions commonly observed in playing the game. Breaking the rules is wrong only in the sense that, if you break enough rules consistently enough, you have ceased to play the old game and have invented a new one.¹⁴

Professors Minow and Spelman have declared similar ideas:

Like others concerned with the failures of abstract, universal principles to resolve problems, we emphasize "context" in order to expose how apparently neutral and universal rules in effect burden or exclude anyone who does not share the characteristics of privileged, white, Christian, able-bodied, heterosexual adult men for whom those rules were actually written.¹⁵

10. Schanck, supra note 8, at 2508.

11. Id.; see also Catherine A. MacKinnon, Points Against Postmodernism, 75 chi.-kent L. Rev. 687, 693 (2000) ("Its main target is, precisely, reality.").

12. Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End 248(1995).

13. Hutchinson, supra note 8, at 1185, 1188-91; Joan C Williams, Culture and Certainty: Legal...