FROM PRE-MODERNISM TO POST-MODERNISM: JUDICIAL DECONSTRUCTION/RECONSTRUCTION

Paper Details Paper Code: RA-CLA-V2-18 Category: Research Article Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Richa Rajpal, “From Pre-Modernism to Post Modernism: Judicial Deconstruction/Reconstruction”, 2, AIJACLA, 196, 196-201 (2022).

Author Details: Richa Rajpal, Advocate, B.A.LL.B.: BHU, LL.M., Hidayatullah National Law University

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Abstract Sri Bhagvati Charan Verma (Bhagvaticharan Verma, Chitralekha (Rajkamal Paperbacks, 2006)) wrote a classical novel of Hindi Literature called Chitralekha in which a student asked his teacher as to what is meant by paap (vice). The teacher sent two of his students to two different people i.e. Kumargiri and Beejgupt to find out the difference between paap and punya. The student of Kumargiri considered him to be virtuous and Beejgupta was vicious as he was a slave to his desires. The student of Beejgupt was of the contrary opinion. He considered Beejgupt to be virtuous as he made sacrifices and found Kumargiri to be selfish. Thus the teacher concluded by teaching them that there is no concept like vice in this world and people have different notions because they live in different surroundings. The concepts of good and bad or pleasure and pain are different for each person because they are influenced by different surroundings. Similarly, Nietzsche has opined that there is nothing wrong or right in this world. It is just a matter of perspective. The above novel signifies the crux of post-modernism. Keywords: Modernism, Power, Force, Interpretation, Meaning

INTRODUCTION Modernism is a reaction to medievalism which prevailed from 13th to 15th century. Its main philosophy as those human beings was guided by faith and belief. This era was dominated by religion and religious institutions. It was then believed that human beings had a very limited capacity to understand or find out the universal truth. This truth is told by God to very few people who were as a result supreme and dominated over religion. Modernism considered human beings as rational and that they could themselves find out the universal truth. Rationality dominated this era and it saw revolutions in industry, science and technology. The concepts like freedom and human rights emerged in this era. The making of constitution also began since this time. Post-modernism began from 1950 and it continues till date. This theory is a reaction to modernism and it believes that man is influenced by its surroundings. Therefore it is impossible to attain objective knowledge which is based on facts. Post-modernism believes that human beings are related to their historical backgrounds and are thus always affected by it. The dominant thinkers of this era do not believe in the concept of universal truth.

ENLIGHTENMENT AND MODERNISM Kant describes enlightenment as “man's emergence from his self-incurred immaturity. Immaturity is the inability to use one's own understanding without the guidance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another.” The motto of enlightenment is therefore: Sapere aude: Have courage to use your own understanding.[1] He further states, “For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all--freedom to make public use of one's reason in all matters.”[2] Pre-modernism had stressed upon metaphysical unity of physical existence and principles governing the physical existence. Individuals and society were part of nature and divinity therefore truth and eternal values or universal principles could always be discerned by the persons within themselves as they were participants in the divine order of nature. In the medieval era these universal principles were supposed to be ordained by God. Man’s reason was now limited and incapable of knowing the true nature of universe and universal principles. Faith was now the best recourse for the man to be at peace with the universal. Modernism emphasized on difference between sacred and secular and inculcated scientific temper. “To question, to doubt, to challenge and to confront traditions became imaginable and even normal.”[3]

POST-MODERNISM Post-modernism challenges the basic notions of enlightenment. It began as a movement in architecture in 1950s and 1960s by challenging the modernist’s notions of architecture. Modernism in art and architecture was a search for new possibilities, uniqueness and individuality. Postmodernism on the other hand combined the modern utility with architectural classical designs of the past. Postmodernism spread into other branches of knowledge like philosophy, literature and law. Events like holocaust in Germany[4] , excesses done in USSR and other communist countries for suppression of bourgeoisie, Vietnam war, civil rights movement in USA challenged the humanist idea of enlightenment that a person was capable of thinking and acting like an autonomous and rational being. Postmodernism challenged the basic principle of modernism that there is possibility of gaining objective knowledge by application of scientific approach and temper which can be incorporated as universal principles in human institutions making them work in neutral and independent manner. Commenting on Kant’s write up on enlightenment, Foucault states that enlightenment has worked as blackmail-either you are for enlightenment and remain within its tradition of rationalism or else you criticize enlightenment and then try to escape from its principles of rationality. For Foucault enlightenment is “not faithfulness to doctrinal elements, but rather the permanent reactivation of an attitude –that is, of a philosophical ethos that could be described as a permanent critique of our historical era.”[5] ‘This entails an obvious consequence: that criticism is no longer going to be practiced in the search for formal structures with universal value, but rather as a historical investigation into the events that have led us to constitute ourselves and to recognize ourselves as subjects of what we are doing, thinking and saying. In that sense, this criticism is not transcendental, and its goal is not that of making metaphysics possible: it is genealogical in its design and archaeological in its method.[6]

MAIN CONTENTIONS OF POSTMODERNISM 1. Deconstruction of Meta narratives: It deconstructs all meta narratives like legal liberalism or Metanarratives like ideas of Hegel that the ultimate aim of humanity is realisation of world spirit and that of Karl Marx that communism is the final goal of proletarian revolution and socialism have been discarded by postmodern jurists. 2. No right or wrong: Different people have different viewpoints and truth has many dimensions. There is no one truth. Therefore, there is no right or wrong. 3. Dominant Perspective Reasonable: The dominant perspective is called as reasonable while the alternate perspective is termed as unreasonable. Postmodernist approach welcomes plurality in thinking. 4. A Person is Combination of different Identities: Michel Foucault has termed death of subject as important perspective of post modernism. He says that a person does not have one identity rather he is combination of multiple identities.[7] In different context we have different identities. The identity of an individual is dependent on context and the identity of the other individuals. Focult further remarks that Power is not fixed or localised in a particular individual or institution. Its dynamic, power is located in a particular organisational social network. Law is created by the most dominant / powerful cultural groups in society so the concern of law being right or wrong, moral or immoral is immaterial. Post modernists hold while citing example of Hart, Dworkin and Rauls- that these latter jurists make us believe that there is consensus in society on basis of which the legal structure is based. According to them the dominant section of society moulded the legal regime and to make it acceptable to others they forward the said legal system as - rational, good, reasoned and just legal order. According to Schalag, when existing legal order is portrayed as and the opposite is as unreasonable. Alternative legal order would lead to chaos, arbitrariness and totalitarianism. He further says that the concept of secondary rule given by Hart is nothing but the American legal system. Hart portrayed this system as general legal system. But both jurists agree that: 1. This system has a universal application. 2. Any just legal system has to be based on these systems.

5. Centrality of Concept of Power: Derrida criticises Hart's concept (that a legal system is based on general acceptance.) According to him the word 'enforceability' or application of force is very essential to concept of law. In this way his approach is closer to Austin who held that. The idea of enforcement' has following elements a. It is forced upon the people. b. It is a violent concept. c. Dissenting voices are suppressed by it. Further, Derrida holds that the legal system tries to distinguish between the legitimate and the illegitimate use of power:

​Legitimate Use	​Illegitimate use
​● Used by authority	​● Power is used by individual
​● Under legal system	​● ​It is punished
​● It is sanctioned

When law is established as a result of revolution, it suppresses the alternative voices. Such legal system is established not because it is good or bad but because it is successful. So, law is made by suppressing others. Initial suppression is not sanctioned. It is extra-legal. Whenever a legal system is enforced either by interpretation or enforcement of law, alternative voices are suppressed by calling the system just and reasonable. Legal system is afraid of individual violence. So, individual violence is condemned. However, in condemning individual violence also, the act of violence is committed. d. Deconstruction of Justice: Postmodern jurisprudence constructs the ideal of deconstructing justice according to law. The whole statement Justice according to law is a misconception. Law originates in violence. Violence is inherent and its present even in enforcement. Therefore, justice according to law is not possible. Derrida further he says that law has to be general. There cannot be different laws for different people. But demand of justice requires that circumstances of every person are different. So- ● Justice according to law is a misconception. ● Law does not help in getting justice. Postmodern jurists criticise liberal legal regimes for the idea of putting people in strict categories like citizens, non-citizens, man and woman. Categorisation of people leads to marginalising alternative voices. Therefore, its fault is to put people in categories. A person is mixture of multiple identities.

CONCLUDING REMARKS Post modernism in short deconstructs the myth created by liberal social, political and legal regime about the possibility of everlasting rational system of institutions which would cohere and harmonize the interests of everyone and which can claim legitimacy because of its inherent justness, morality and rationality. They point out that one system may be no better in terms of rationality than the alternative system and the existing system originated due to choice made by the dominant group which could be an emotional choice and thereafter dissenting voices were suppressed. Therefore a legal system is based on violence and continues to conserve itself through violence. There is need to continuously deconstruct the existing order from the perspective of the ‘other’ that is - dissenting voices or those outside the system. This continuous deconstruction and reconstruction can be the only possible approach to justice. Complete justice or just order is an unachievable goal.

[1] See <http://www.columbia.edu/acis/ets/CCREAD/etscc/kant.html> [2] Id. [3] Stephan M. Feldman, American Legal Thought from Premodernsim to Postmodernism (New York: Oxford University press, 2000) p. 16 [4] ‘It was the rational world of modern civilization that made the Holocaust thinkable.’ Zygmunt Bauman. ‘The Holocaust revealed most starkly that the modernist conception of rationality, embodied in the bureaucratic organization, could somehow eclipse morality to produce genocide.’ Feldman. [5] Michel Foucault, ‘What is Enlightenment’ in the Foucault Reader edited by Paul Rabinow, pp. 32-50 (New York: Pantheon Books, 1984) available at <http://foucault.info//documents/whatisenlightenment/foucault.whatisenlightenment.en.html> [6] Id. [7] Wayne Morrison, Jurisprudence: from the Greeks to post-modernism (Lawman India Pvt. Ltd., 1997)p. 520