Modernism, Polarity, and the Rule of Law
ANU College of Law; ANU College of Arts and Social Sciences; McGill University - Faculty of Law
June 1, 2012
Yale Journal of Law and Humanities, Vol. 24, pp. 475-505, 2012
ANU College of Law Research Paper No. 12-30
In this paper I use the history of modernism at the end of the first world war to cast new light on current debates in the rule of law. I argue that ideas of polarity and discord, eg in the work of DH Lawrence, enrich the debate between positivist and romantic theories of the rule of law. The history of modernism both clarifies those debates and shows us a third path between the impoverished alternatives that continue to bedevil debates in this area. Understanding the rule of law through the lens of modernism, and in particular through the language of polarity, disturbs the hegemonic reason of positivism and the hegemonic unreason of romanticism alike. Polarity’s backwards-and-forwards movement of constant correction, adjustment, and metamorphosis cannot resolve the opposition between general rules and specific circumstances, between narrative’s attention to uniqueness and difference and the public demand for an articulated and defensible interpretation of existing principles; instead, both sides remain continually in play. The imperfectability of justice turns the rule of law into an endless process of reassessment and learning. The irreducible tension of polarity or contradiction generates a public process of call and answer, in which our opinions are constantly amended and tested against the challenge of the voices of others. Against positivists’ assertion of law’s perfection and the romantics’ of its perfectibility - the former a claim of purity centered on the past and the second a dream of it focused on the future - the current approach seeks to find in the critique of modernity a way to understand the rule of law while fully embracing our present imperfection, our fragmentation, and the imperfection and fragmentation of justice with us. My argument has been for us to learn to accept and build on these qualities of the human condition, with which modernism was so absorbed, rather than to fear or deny them. Indeed, an awareness that lack lies at the heart of the human condition implies an abiding humility about our human capacities with specific relevance to the claims that institutions might make. In the wake of the first World Ware, modernist art and literature in particular seems to have striven to achieve greater understanding not by maintaining its closure, determinacy, or authority - but by undermining it. That is a trick that the rule of law might do well to emulate.
Number of Pages in PDF File: 34
Keywords: legal history, modernism, World War I, DH Lawrence, Carl Schmitt, Derrida, polarity, positivism, romanticism, rule of lawAccepted Paper Series
Date posted: August 2, 2012 ; Last revised: August 9, 2012
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