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LA400
Advanced Pacific Legal Studies - TOPICS
Module 8
Law, Modernity and Post ModernismIntroduction
In this module we will look at the relationship between law and modernity and also law and post-modernity. This is a relevant topic for Pacific legal systems. Very often in Pacific systems one can detect a tension between what one could call the forces of modernity and those of tradition. Sometimes this tension appears as an opposition between the values of Western societies and customary societies. Sometimes it takes on the appearance in discussions about economic, political and social development in Pacific countries.
In a legal sense we can see the immediate relevance of some of this. There is introduced law brought to the Pacific region by the various colonial powers. With it were introduced the basic institutions of law on the Western model - the nation State, the separation of power doctrine, written constitutions, the court and parliamentary systems. On the other hand, there is the claim that this superimposed colonial system does not adequately reflect the traditional values of cultures in the pacific region and indeed, there are attempts to reinstate or resurrect these values. The attention paid to customary law is one main aspect of this. Thus modernity is most often seen as something which is in opposition to, or at least in an uncomfortable relationship with tradition.
In this module we will attempt to introduce you to some of the basic ideas surrounding the concepts of modernity and post-modernity. It is a difficult task to simplify a range of complex issues but we hope that this provides you with some assistance in gaining an understanding of the issues involved.
Modernity, Modernism and Modernisation
The term 'modern', and related terms such as modernism, modernity and modernisation, are derived from the Latin word modus meaning 'just now'. When we say something is modern we tend to mean something that is up to date or in line with conditions, social, cultural or otherwise, of the present time. It is new, certainly and often opposed to the old or the outdated. It is striking how often expressions such as 'old fashion', anachronistic, 'out of date' 'outmoded' or just 'old' are frequently used to devalue something or to put a negative value on it. It is perhaps no accident that this frequently occurs when we are dealing with technology. For something to be described technologically out of date often means that it is useless altogether.
In a more theoretical sense, modernity is a description of a particular form of culture which emerged fully blown in the West in the mid nineteenth century but certainly traceably beyond that. If we look at the etymology of the term one can say that is related to an underlying philosophy or ideology, where the present moment tends to be accorded greater value and validity that the past or perhaps the future. It values and accords both validity and credibility to what is rather than what was or what ought to be or what will be. Thus it has a strong temporal perspective; a perspective which values the conditions of the present. Clearly the challenge to tradition and history can be seen at this level.
But there have been some who challenge that modernity just implies, or implies mainly some notion of the superiority of the present over the past. They would point out that some ancient societies such as those of ancient Greece, Rome or China could have features of modernity. This is fair enough in some ways. Modernity is not just a culture which looks like contemporary culture as it happens to be now. A culture can be described as modern if it portrays certain features of a modern culture as a theoretical or ideal concept (which is the way in which Weber used the concept). So in that sense it would be a mistake to substitute Western culture for modernity. There is an inevitable confusion here because when we talk about a process of modernisation that is just the way we would use it.
Now terms such as modernity, modernism and modernisation are obviously linguistically related. But in a theoretical sense they are rather distinctive. A term such as 'modernity' is used to describe a particular type of social condition or arrangement which is most often identified with Western (or European) liberal society. Its employment gained considerable currency in the 1970s and 1980s in schools of sociology because of the renewed interest taken in the theories of the early twentieth German writer Max Weber. Modernism on the other hand tends to refer to a system of ideas or styles in literature and art which was current particularly between the first and second world wars.
Modernisation, on the other hand, usually indicates a process whereby societies undergo a process of development - perhaps in some sense of becoming modern on the model of Western cultures or societies. Modernisation is a developmental theory which tends to see societies as going through some linear process of development - from tribal to feudal to aristocratic to modern. It is an idea of historical progress from the least developed to the better developed (note that this is one of the ideas basic to liberal ideology and those what some would say is integral to modernity itself). There are several variants of this thesis. To classical Marxist theorists, for example, modernity would be the outcome of the process of modernisation which, in turn would involve the coming into being of liberal bourgeois/capitalist society as part of the inevitable pattern of historical development driven by economic factors. Liberal capitalist society did away with the feudal order in Europe but at the same time built on it by assuming and changing some of its features. That is, the internal changes in the feudal order and the feudal economy produced early capitalism. This process, it is suggested is not only characteristic of the Western societies. It is a feature of universal world history although the stages of development are staggered in particular cases. In more contemporary terms it is put advanced by writers such as Rostow and Inkeles. By way of introduction to notions of modernisation READ the extract from Kulcsar Modernization and Law Click here
The notion of modernity is disputed to some degree, as are all social and political concepts. For example, it has been argued that modernity is a broader concept than liberalism or liberal society. By liberalism we mean that political ideology which values individual liberty rights and freedoms above all else. These are fundamental values to which all states and systems of law. The priority of these rights are usually reflected in the constitution of a country. Equality between citizens is formally (rather than substantively) established in a liberal society by virtue of the operation of the rule of law. It is perhaps more accurate to say that liberalism is a special case or limited instance of the modernity. As noted above modernity is not equated with Western culture alone. But liberalism is usually taken as the dominant political ideology in Western culture.
Also there are some who argue that the existence of modernism as a distinctive way both of describing the conditions of society or of thinking about societies has now lost its usefulness. It has been displaced by what some have called post-modernism or the post-modern condition of society (if indeed there are any societies or communities left at all). Post modernism is a rather sceptical philosophy which takes its original impetus from French writers such as Foucault, Derrida and Lacan. By way of general introduction to some of the themes here READ the article by Fernback and Thompson - click here We will discuss this further below.
One of the disputes is how or why modernity arose and also when it arose in the Europe. But it is assumed that it arose from post-Renaissance social conditions in Europe; that is, after the collapse of both the feudal order (which was an order based generally on customary principles). Again, there are different theories as to what conditions produced modern social conditions, the conditions of modernity.
But Marxism is just one approach and it would be inaccurate to treat the concept of bourgeois capitalism as if it meant exactly modernity. There are similar features but the assimilation is not quite exact. Other theorists focus on other matters, such as the development of technology, the role of culture, the rise of secularism and so on. In part the issue depends upon what view of historical development one takes. But we need not go further into that at the moment.
Features of A Modern Culture
Let us look for the moment at some of the features of a modern culture or society. Not all theorists agree on all of these features.
- The influence of natural scientific thought as providing a paradigm of knowledge. Modern science arose after the period of the Renaissance in Europe. It rejects certain classical philosophies such as those of Plato and the ancient Greeks. It rejects the idea that direct religious knowledge is possible (although it might acknowledge that religion can be a matter of belief). Thus it contains within it a rejection of certain of the traditional elements of thinking about the world. Its basis is empirical believing that human knowledge is only possible when it is based on sense experience - that is knowledge that is based on the human senses such as hearing, sight and so on. It is a sceptical approach to human knowledge, often rejecting the idea that grand metaphysical or religious propositions about the world can be either known or find any reliable basis in knowledge. It is practical in believing that a rigorous testing or experimental methods are essential to verify or falsify any knowledge claim.
- It is humanistic, secular and often materialistic in its focus. This affects how issues which are relevant in the humanities disciplines such as political theory and law are to be approached. For example, the existence of government and its relationship to the people who are ruled must be approached, not by trying to say that God has mandated a certain form of rule or government. It must be justified from the bottom up - from the point of view of the human beings who are subject to rule. Political theory is, in that sense, secular rather than sacred. Most often religion is treated as having no bearing whatsoever on questions of government or political authority. Traditional and charismatic political authority are rejected. It is democratic in its focus.
- The role of technology (as also science) is also of considerable importance. Modernity is a condition which in its later stages involves the increasing use of technology to provide for material needs. Thus modernity depends on industrialisation of society and its rise is consistent with this.
- Logic and reasoning are prized as the significant features of the human condition. Human beings are seen essentially as rational beings who are amenable to logical argument and explanation.
- Tradition and history are devalued and often undercut especially in terms of their potential source of political authority. The French Revolution in the late 18th century, for example, is seen as the effect of an attempt to construct a rational system of politics and government which at the same time served to destroy the traditional aristocratic structure of society.
- Modern society is individualistic in its focus. Individual human beings are seen as the essential composites of society which is conceived of usually as an agglomeration of individuals or diverse associations of individuals. Community or collective values are secondary only.
- Society is highly diverse and complex in its composition. Individuals might combined in any number of groups and associations, but these in a way add to the diversity of society. There is however no all encompassing social unity or social reality which brings together human beings or provides a cohesive social force. There is no one idea of community or community goals/objectives such as might characterise say tribal societies. Relationships between individuals tend to be seen as formal rather than substantive. Legal relations are part of these as they provide authority forms of relations often without any reference to the substantive factors in human relationship. Law is seen as a complex ideology (systems of through) of technical and formal rules.
- Owing in part to the formal relationships which occur in such societies, modern societies are characterised by the emergence of a large bureaucracy and the emergence of complex administrative structures of government.
READ the extract from Unger Law in Modern Society
Modernity in Sociology
Much of the focus on modernity comes from a change in sociological thinking in the 1970s and 1980s as a result of the abandonment of Marxist or Neo-Marxist approaches to social theory. It involved the revival of an interest in the writings of one key thinker - the German sociologist Max Weber. Weber's thought is important in sociology not just as a result of his conception of modernity but we will focus on that here. One aspect of some moment is his focus on the importance of social action and human agency rather than the so called functionalist thought which dominated much of previous sociology. Also important is the notion that there is no simple cause of modern societies. His is a multi causal theory which rejects the somewhat linear determinism found in say Marxist theory.
What Weber argues for as a sociological method is the construction of certain theoretical ideal types (such as modernity) which have numerous features. Not all societies will correspond with any particular archetype exactly. But features of particular societies can thereby be understood and compared.
It might be that you have encountered Weber's theories already. If not, there is an excellent Web site called Verstehen ('understanding' in German) devoted to key aspects of his thought. Click here_. There are also commentaries on Weber's theories in many basic texts on Jurisprudence.
Weber was deeply critical and somewhat pessimistic about the notion of modernity including the role of law in it. Modernity is typified by the pervasiveness of the bureaucratic form of government and, what goes hand in hand with it, the rational/legal form of political authority. In one sense this involves government not by persons, such as we might form in societies government by traditional forms of authority, but government by abstract rules. These are a product of what Weber finds was an essential part of the modern condition - an attempt to rationalise the world; to render it amenable to clear and logical rules. The consequence of this is that every aspect of life becomes subject to this form of rule. It is pervasive and intrudes into every aspect of life. Modern societies are overregulated. It is not governed by people but by so-called impartial rules. The mass of rules blurs the lines of authority in such as society.
The world becomes disenchanted. It is stripped of all traditional (or customary), spiritual and/or magical meaning. Normal human social relations are displaced by formal rules and regulations as a product of the process of rationalisation and the growth of a pervasive bureaucracy. Modern societies are administered in a sense by grey faceless people. Note that the concept rationalisation derives from a Latin word ratio, which had connotations not just of thinking, but of ordering the world. Rationalisation is a type of ordering function. Hence the connection with the idea of law as rules which together form some type of rational ordering system.
One could perhaps note the growth in administrative law in the twentieth century to reinforce Weber's notion of modernity. Modern society is a technical society where technical/administrative rules are pervasive. The rationalisation which occurs in modernity is a challenge to traditional/customary or charismatic authority based societies because the principle of rationalisation, in a sense, involves an appeal to a universal logic which is claimed to be more powerful than that of tradition or history. Both the social cohesion and the social development which is involved in modernity is no longer organic or natural.
But there are other aspects of Weber's approach which ought to be noted. One is the fact that he denies the so-called monocausal these of social formation. Modernity did not just come into existence as a consequence of singular factors - such as the economic determinism upheld by Marx. Modernity is the product instead of multiple causation . It had in other words a complicated set of factors which gave or gives rise to it.
Postmodernism/Postmodernity
The notion of post-modernism appears to have originated in the 1960s but did not become popular until the 1980s. Postmodernists tend to argue that there is no such thing as postmodernism If it exists at all it is merely constituted by discourse which people engage in and about it. It prizes is a certain looseness and fluidity and tends to deny that there are enduring or stable characteristics of anything. For that reason there is no exact definition of the term. However it is has become used in political theory, music, art, fiction, film, drama, photography, architecture, literary theory and criticism, philosophy, anthropology, sociology, geography and more lately law. It does not see these a necessarily distinctive fields because, again there are no exact boundaries, conceptual or perhaps otherwise.
But it is supposed to be characteristic of a period; that which has taken over from modernity. There are some difficulties associated with such a conception because postmodernism seeks to tell us that categorisation into significant periods is a modernist concept. It is modernity which gives us the idea that there is historical progress in some sense from one period to another. But logical inconsistency is not something that postmodernists are particularly concerned about.
Post-modern society is sometimes described as post industrial or late capitalist society so as to distinguish it from modern society but, again just what is meant by these terms is difficult to capture. Its society is one which is more or less completely fragmented, one step beyond the diversity or complexity of modern society. Global influences have destroyed national cultures. There is no unifying knowledge or truth nor any unifying theme which does or could unite such a society. Truth is at best merely a claim to ideology and all ideologies are highly relative. There are merely discrete discourses (scientific, moral, legal) each pretending their own authoritativeness and power. There are no clear lines between high culture and popular culture.
It is a consumer based society where anything is tradeable. Reality is converted into images. Individual life is fragmented into a kind of perpetual present, and characterised by randomness and eclecticism. Often it is denied that there is any such thing as a unified human subject, and certainly not one which many liberal philosophers and psychologist have pretended. Thinking, writing, art and morality of postmodernists tends to be characterised by playfulness, lack of order or pre-given or determinate values. It is highly anti-authority and tends, for example, to deny that there is any independent authority in law. Law is merely a discourse which pretends its own authority. It is a game of power but ultimately merely baseless. Philosophy and jurisprudence are foundationless - circuitous word games and In a postmodern society the authority of law is brought into crisis. The grand tradition has collapsed and no-one can predict what might follow in its place.
There are many possible criticism of the postmodernist message. It is, as was suggested earlier, highly sceptical and deeply pessimistic in most respects and, one could say self-refuting. Its purposes are wholly critical but can such a position ever be fully maintained. There are indeed many who find it difficult to take seriously, and perhaps it should be said that some postmodernists don’t want to be taken seriously. In criticising and exposing the weaknesses and paradoxes of the liberal modernity, postmodernists find that they cannot do anything about the images they have conjured up. They find themselves imprisoned in the despair which is of their own making. When the message is that all is fluid, chaotic and baseless what can one say in response which is not also merely a contribution to the sophisticated form of time-wasting which human discourse and narrative involves.
READ the following introductory articles which provide some basic background knowledge. Remember that postmodernism is a reaction to and a criticism of both modernism (with the focus on culture/art/literature) and modernity in the Weberian sense. It is necessary to some degree to keep the two distinct.
Klages - Postmodernism
Assignment/Seminar Question
Pacific legal systems are often portrayed as if they were reflective of simplistic and unified cultural values which are in some ways characteristic of other traditional and/or tribal societies. But it does not take long to realise that these are legal systems characterised by considerable complexity as indeed are reflected in the cultures concerned. Do the theoretical positions of modernity and/or postmodernity in any way adequately portray the conditions relevant to legal systems in the Pacific region and the role of law within them?
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