What Is Legal Modernism
Recent research on deconstruction43 seems to strangely revive or even generalize these ideas. Unlike more specific political critiques (Marxism, for example, or feminism or critical jurisprudence), deconstruction, always from an analytical and normative point of view, articulates a general theory of the impossibility of a purely objective and predetermined interpretation of anything. In this sense, deconstruction`s claim to be “postmodern” is an idea that it is not so much a rejection of modernity, but its apotheosis. According to Derrida, justice embodies two impulses that are equally strong and diametrically opposed: equal treatment and unique respect. The judiciary expresses the pursuit of a “right or right, legitimacy or legality, stabilizable and legal, predictable, a system of regulated and encrypted regulations”44 and at the same time wants to find a unique and unique response to the situation and the person before us. Justice is both universal and unique; it means treating everyone equally and treating everyone differently; to apply the law indifferently and predictably – and not.45 Every right is a “situational” law. The exception most clearly reveals the nature of the legal power. The decision here departs from the legal norm and . Authority states that the production of law need not be based on law.28 My task now is to show that the crisis of modernity is always fought and is always circumvented in legal theory. This chapter will move us away from the historical and textual analysis of the surrounding chapters to create the necessary legal context. In the first part of this chapter, I try to show the conventional link between the rule of law and positivism and the origin of the critique of positivism in the crisis of modernity. Despite the crucial question of their relationship, supporters of the rule of law and critics of positivism in general have had nothing to say to each other. In the rare cases where attempts have been made to bring these two very different traditions together, as in the recent work of Roger Berkowitz on the origins of positivism, Brian Tamanaha on the rule of law, or William Scheuerman on Schmitt, the second part of this chapter will argue that their work has been marred by a narrow analysis of this history.
A closer look at this history will show us (contra Tamanaha) the gravity of the challenge that the modernist moment poses to the rule of law, but will also allow (against Berkowitz) that more than one reaction is available. The court may be seen as too legalistic. I`m sorry to think it`s something else. There is no safe guide to judicial decisions in major conflicts other than strict and comprehensive legalism. The court and the legal profession are the necessary foundation of any community. Lawyers are often criticized for not being constructive. It is not up to them to contribute to the constructive activities of the Community, but to maintain the foundations and stable framework conditions. We are not done with modernity or with ourselves.
In its normative and descriptive dimensions, we are always grappling with the critique of modernity. What can be done against the ruthless success of our modern machine life and the miserable failure of our modern intellectual life? Standard notions of the rule of law continue to rely heavily on the positivist approach to the legal method and the principles of modernity. And on the other hand, critics of modernity continue to confront them, relying largely on a version of romanticism: the appeal to an external force beyond the law that will unite and synthesize these opposites – as is the case in primitive romanticism and still dominates the field of law and literature – or on a kind of passion. who will triumph over these opposites – as was the case in late Romanticism and in what is sometimes called “reactionary modernity”. Anyway, what we see is a vision of transcendence and a belief in the possibility of legal salvation. Nevertheless, it seems to me that the various implications of the modernist moment for the understanding of legal judgment – what has changed it, which cannot remain unchanged, what has dismantled it, what cannot be reconstructed – have been largely forgotten by both sides. Is it still possible to believe in one side after modernity? What would a reconciliation of conflicting views look like? Even in legal texts that seem to require such in-depth reflection, there has been a tendency to merge modernity and modernity, rather than seeing one as a response to the other.3 Carl Schmitt and Hans Kelsen are also exemplary here: when they fight one last time against the Enlightenment and the Reformation, it does not seem to have occurred to them, that modernity – the time in which they actually lived – offers a new perspective on these issues. Not all authors have equated this approach to rules with justice. Joseph Raz, for example, who relies on Hayek, defines the rule of law as the embodiment of two theses: that all peoples, including governments, should be governed by “the law” and that this “law” should be able to guide their actions.13 In this way too, it is the prior objective existence of certain legal rules that affect security.
security, generality and equality of the law are guaranteed.14 Raz argues that people are informed in advance of the consequences of their actions (whether marriage, pension, fine or death) and thus help the law achieve its goals, whether those goals are morally bad or morally good.
