Recent legal and political scholarship focuses upon the changing nature of our modern legal and state system, arguing for a paradigmatic change, which consists in moving away from a hierarchical structure of norm production to a more network and relational approach (F. Ost & M. van de Kerckhove, 2002; J. Chevallier, 2003; K.H. Ladeur, 1995, 2002). This theoretical and axiological shift has been characterised by a so called post-modernisation of legal theory in which elements of post-fordism and globalization studies are combined within its heuristic framework.
It is argued that norm-production is becoming a component in a complex network of national, transnational and international private and public institutions. Soft law, private standards or ‘best practices’ become components of a legal practice oriented to relating, that can no longer be reflected in notions of the unity of the legal system, still less the unity of the legislator’s will. There is a growing problem of the dissolution of stable expectations, the severance of a clearly structured and differentiated hierarchy of presupposed natural levels of complexity. This development of societal complexity forces the legal system to reintroduce more flexibility, in sum a deep transformation of the constitutional system and the relative socio-economic protection it provides.
However, the political and ethical varieties of these post-modern accounts of legal theory - from an aggressive defence of neo-liberal policies to a more democratic but vague plea for a participative polity - may suggest that the post-modernization of social and legal theory is a necessary deconstructive, but historically limited phase of which the radical social, legal and political consequences are still to be defined. This contribution tries to outline a possible framework for a more coherent account of the paradigmatic transition of our social and legal phenomena by elaborating upon de Sousa Santos’ concept of oppositional postmodernism (B. de Sousa Santos, 1995, 2002). His account of a post-modern legal theory is an explicit reaction against so called celebratory post-modernity, that is, a celebration of a post-historical society in which the idea of a more just and egalitarian utopia has become obsolete. Instead, he argues, our time is an époque of transition between the paradigm of modernity, which seems to have exhausted its emancipating and liberating capacities, and another, emergent paradigm, of which so far we have only signs. The question thus arises; What then, are these signs, and how can they be identified as an alternative framework for both global capitalism and its modern counter ideologies, thus contributing to new critical legal and political theory? We will argue that moving beyond a post-modern and even oppositional post-modern account of the paradigmatic changing nature of society, politics and law, a trans-modern social and legal theory can provide us with the intellectual and axiological tools to formulate a new research agenda that enables us to counter the limits of both modern and post-modern social and legal theory. This contribution will try to contribute to an outline of a trans-modern social and political thought by applying it to the study of the changing nature of state, law and politics and their influence on new forms of (trans-modern) social and political organisation. |
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