Manderson Modernist Polarity Rule of Law

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    Yale Journal of Law & the Humanities

    Volume 24 | Issue 2 Article 1

    5-8-2013

    Modernism, Polarity, and the Rule of LawDesmond Manderson

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    Part of the History Commons, and the Law Commons

    Tis Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale

    Journal of Law & the Humanities by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please

    contactjulian.aiken@yale.edu.

    Recommended CitationManderson, Desmond (2012) "Modernism, Polarity, and the R ule of Law," Yale Journal of Law & the Humanities: Vol. 24: Iss. 2, Article1.

    Available at: hp://digitalcommons.law.yale.edu/yjlh/vol24/iss2/1

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    Articles

    Modernism, Polarity, and the Rule of LawDesmond Manderson

    The rule of law is in peril. Some say it is imperiled by reactionarypolitics. Some say it is imperiled by radical theory. Some say that thesetwo dimensions are complicit: by working so avidly to undermine theintegrity of texts and institutions, key movements in contemporary legaltheory and philosophy are often said to weaken the bulwark of the rule oflaw just when it is most needed. The question for this Article is thefollowing: is this true, and if it is, what can we do about it? Powerfulcritiques of "rules," language, objectivity and meaning in law have beenaccumulating for a long time now and cannot just be wished away,regardless of our political preferences. The challenge is to address moreseriously what this means for the rule of law. But it is a challengeconfronted. Those interested in the rule of law tend to trivialize thecritique; those interested in the critique tend to ignore the rule of law. Inthis Article, I attempt to get past this willful blindness and engage theissue. The critique of positivism does indeed have serious implications for

    * Future Fellow, College of Law / Research School of Humanities and the Arts, The AustralianNational University, Canberra.

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    Manderson: Modernism, Polarity, and the Rule of Law

    Produced by The Berkeley Electronic Press, 2012

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    Yale Journal of Law & the Humanities

    the rule of law. But by paying attention to the historical moment whenthese two traditions most dramatically collided, there is much we canlearn. Not only does the historical context sharpen and intensify the issuesat stake, but it also reveals a third alternative that ignores neither thecritique of positivism nor the rule of law. In this Article, I will call thisalternative "polarity," and I want to show where and why it arises fromthe historical context of modernism and what implications it might havefor a post-positivist rule of law. History therefore teaches us no t only whythe problems with the rule of law have been so long-lasting, but what wemight do about it. Perhaps, after all, the peril to the rule of law might beaverted not by ignoring the critique of positivism bu t by embracing it.

    In Part I, I show how the basic assumptions of positivism parallel thoseof the rule of law such that the intellectual critique leveled at the formercauses acute problems for the latter. Yet, those who have attempted toengage with the critique from the point of view of the rule of law havemerely avoided the issue. I illustrate that avoidance by looking at recentwork by Brian Tamanaha in particular.

    In Part II, I show that missed opportunities and circular debates aroundthis critical issue go back many years. It is only by going back to thehistorical and interdisciplinary origins of the conflict between the rule oflaw and legal critique that we can see it properly and respond to itadequately. History, I will argue, affords us insight, perspective, and newopportunities. The challenge to the rule of law crystallized and was indeedat its most intense at the height of the movement of modernism in thefraught years following World War I. Right across Europe and inAmerica, the "crisis of modernity" unleashed by that cataclysmprofoundly undermined the faith of the West in its systems, mechanisms,structures, and institutions. That led in many quarters to a reactionaryromanticism, a kind of anti-positivism of which, in relation to law andpolitics, Carl Schmitt is emblematic. The force of Schmitt's argumentagainst the very possibility of rule-constrained decisionmaking has no tdiminished. Powerful traces of transcendentalism or romanticism, whichwould throw out the baby of the rule of law with the bathwater ofpositivism, can still be found across many aspects of contemporary legaltheory.Returning to the roots of the problem sharpens what is at stake in thisdebate and demonstrates how closely the legal and political issue is tied toa literary, aesthetic, philosophical and cultural context-modernism. InPart III, I argue that while post-war modernism dramatizes the standoffbetween positivism and romanticism, it also contains the resources tomove beyond it-resources which, like modernism itself, legal theorykeeps forgetting. The language and ideas of "polarity" articulated by D.H.Lawrence in the early 1920s is one such resource. Polarity expresses

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    Lawrence's insight that contradiction and opposition, such as thosebetween rules and applications, general norms and particular persons, lawand justice even, should neither be separated s the positivists would haveit, no r harmonizedas the romantics would have it. On the contrary, forLawrence the tensions and oppositions in ou r life must be maintained andpreserved. This insight came precisely out of his experience of literatureand his intense engagement with the political currents of the time. Neitherwas he alone in making this move and thereby fully embracing thecontingency and uncertainty of the twentieth-century. Time and again thegreat modernists of the 1920s, including Walter Benjamin, moved in thesame direction.In Part IV, I briefly show polarity's continuing relevance tocontemporary legal theory as a way of embracing the very uncertaintiesand contradictions which both positivism and romanticism wish toovercome. In particular, the idea of polarity clarifies the contribution ofdeconstruction to these debates. Deconstruction continues to be misreadand misunderstood. Polarity allows us to more clearly see that it is notonly an anti-positivist theory of law, bu t equally, and, despite manyassertions to the contrary, an anti-transcendental one.

    In Part V, I apply what we have learned from our excavation ofmodernism. The question I began with was whether the critique ofpositivism must doom the rule of law. My answer is no. Polarity andmodernism suggest a way past this false dichotomy-a way ofunderstandi