VOL.6 NO.10 (OCTOBER, 1996) pp. 157-161.

TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION by Boaventura de Sousa Santos. New York and London: Routledge, 1995. 614 pp. Paper $29.95.

Reviewed by Lief Carter, The Colorado College.

Dear Dr. de Sousa Santos:

I've been asked to review your book. I loudly cheer your basic themes. The postmodern movement IS a paradigm change of great importance. The new paradigm DOES overthrow many epistemological assumptions in both social philosophy and empirical research. Something like "common sense" is perhaps the closest we can come to a common, and hence emancipating, human language. And I agree that imagining the achievement of such a language is a utopian enterprise. But I gotta tell ya, man, I'm having a lot of trouble getting through this thing.

For openers, I struggle with your rhetorical style. I'm not sure whether it's the sentence construction, or abstracted terminology, or what. But, well, take this example, which I've selected by opening the book at random and writing down the first sentence I saw. (This is from your second chapter, titled "Toward a Postmodern Understanding of Law," page 61 near the bottom.)

This concern with systematization and rationalization, which is typical of seventeenth- and eighteenth-century jusnaturalism, has its roots in the legal humanism of the fifteenth and sixteenth centuries, and in its project has its roots in Cicero's ideal of reducing law to an art or a science (JUS IN ARTEM REDIGENDO) by means of revealing the abstract reason contained in Roman law (the RECTA RATIO or RATIO JURIS).

You invent so much new terminology, and at least in this passage sprinkle so liberally with Latin phrases (On page 61 I count 14 Latin phrases in addition to the three included in my quote.), that it's slow going. And you have asked your readers to follow you through nearly 600 pages of what looks like at most eight-point font! And substantively, doesn't it somehow matter whether law could, ideally, be reduced to an art or a science?

And then there's the organization. For Chapter Three (your empirical chapter, "The Law of the Oppressed," in your Part II, "The Time-Spaces of Law: Locality, Nationality, and Transnationality"), I count two "I" heads, six "A" heads, four "1" heads (one of which has no follow-up), thirteen "a" heads, and thirteen "i" heads. So much goes on in this chapter that to link, say, the section on p. 130 titled "TOPOI and Judicial Protopolicies," to the untitled Diagram 2 on p. 218, which shows the movement from "The TOPOS of Fairness" and its emphasis on mediation toward the more legalistic and impersonal "Asphalt Law as a Threat," requires real effort. (Linking the beginning of my last sentence to its end is hard enough!) And the index could be more helpful. It has no entry for "jusnaturalism," and I could define "the law of the asphalt" only by extrapolating from the indexed reference to "asphalt candidates."

By the way, I think the concept of your "Chapter Three-In-The-Mirror," where I found the definition for "asphalt candidates," is exciting and promising. (But was that first subhead title, "Induction," a pun or a typo? The original chapter three begins with "Introduction," and I couldn't see how "Induction" mirrored "Introduction." But onward!) The idea of writing your own personal account of your research effort on odd-numbered pages, opposite the actual research description itself on the even-numbered pages, would have worked even better if you had keyed the substance of the left-hand page to that of the right, sort of like horizontal footnotes. As it was, I could never tell when I was supposed to stop reading the one and turn to the other. Still, it graphically underscores your point that we cannot separate subject and object. Nice PM touch!

My main point in writing you, however, is not so much to carp as to pose some questions for you. Let me preface my questions by summarizing what I take to be some common features of postmodern thought:

1. Reality is socially constructed. (My non-PM friends usually tell me to jump out a window when I make this argument, not out of anger--I hope!--but to claim that gravity and the laws of physics are not socially constructed. But I reply instead that I of course I won't jump, but that's simply because my colleague and I share the same construction. If I were a religious fundamentalist who thought that jumping ten stories would lead me straight to heaven and eternal bliss because I jumped for a holy cause, I might in fact jump.) Academics, therefore, have no special pride of place when it comes to discovering insights or truths about the world. We don't get closer to "the truth" by describing "more." (Your autobiographical notes make this point very powerfully.) We academics must honor the customs and expectations of our audiences, just as all successful rhetors must, when we seek to persuade. All knowledge is local, and we make our images and claims appealing only within local and contingent frameworks.

2. As Richard Rorty reminds us, the only thing that logic proves is that you can't prove anything logically. All logics lead either to vicious circles or infinite regresses. You know, the problem we get into when one asserts that there is no truth and the other notes that the first has just contradicted himself (as I implicitly did when I described an "objective" truth about persuasion and rhetoric).

3. The best definition of "truth" we can come up with, given one and two above, is that statements which cohere within the rhetorical framework shared by (indeed defined by) the members of a particular audience, are true. (This definition is circular; other definitions are infinitely regressive.) Note that, by this definition, claiming truth does not automatically create truth. Internally contradictory statements are incoherent and hence not true. For example, I recently debated advocates for Colorado's Amendment II, which forbade any unit of government in Colorado from adopting any policy prohibiting discrimination against (or allowing recovery for discrimination against) anyone of homosexual orientation. When the measure's advocates publicly claimed that they only wished to sanction conduct, their claim was untrue, given the legal text they themselves drafted, which sanctioned homosexual orientation quite apart from conduct. In the PM world, then, it is still easy to show that a claim is "wrong," even when we cannot prove that it is "right."

And now my questions:

Q. Who's your audience? Your approach is so thoroughly European and scholastic--you really must discuss Grotius and Hobbes, as well as many people I've never heard of, to feel you've done your job--that I have trouble connecting your arguments to an American audience. Yet I gather this is not a translation. Do you believe this book, as written, will persuade a group of people (who in turn possess political power) to act meaningfully on your advices? Who are these people? Or do you reject the premise that those who seek to persuade must speak in the language of their audience?

Q. If you hoped to reach an American audience of the intellegensia, what led you not to address the work of Fish or Rorty? I don't find them (or Davidson or Quine) in the index.

Q. Do you find a place in academic (as opposed to political) rhetoric for postmodern foundationalism? On p. 358, in the section titled "Human Rights in the Paradigmatic Tradition," you say, "A new architecture of rights, based on a new foundation and with a new justification, is called for.... The new architecture must go to the roots of modernity,...to...turn the roots upside down, so to speak, and plant there the construction site." Are you proposing an academically viable foundational postmodernism, or are you trying to persuade an academic audience via a mytho-poetic appeal to a foundation you know does not exist?

Clarifying your positions on these matters might ease my passage through this rich and dense book.


Part II

Part I of this review is certainly unconventional for this medium, THE LAW AND POLITICS BOOK REVIEW. I began, in some confusion and frustration, to write it before I tackled the book systematically. I hope that readers will react to it in one of two ways. Readers who find a hypothetical letter to an author appropriate and useful for this academic locus will not welcome the archetypally academic rhetoric of books like TOWARD A NEW COMMON SENSE. Readers who find my Part I inappropriate will presumably do so because they feel that the format of a personal letter does not honor the rhetoric of a book review locus. But readers in this second group would still agree that rhetoric must suit setting in order to project a work's truthfulness and integrity. And this is precisely the problem with this book. Any book that promotes a new postmodern common sense cannot, if it asserts abstracted "facts" and categorical truths on every page, move its audience any more than a prayer will move confirmed atheists.

Now to a more conventional form of review. The author, judging by his autobiography, has circulated in his thirty-year career among Coimbra University in Portugal, the Free University in West Berlin, the Max Planck Institut in Freiburg, Yale, and the University of Wisconsin. In the 1970s he lived, in considerable poverty, in a FAVELA in Rio de Janeiro, researching the Brazilian legal system's hegemonic oppressions of the poor.

De Sousa Santos's two "chapters three" report the results of that research. Many of the case studies's observations and conclusions are very familiar, but he reaches a provocative conclusion: Were we to imagine (in utopian fashion, which the author explicitly embraces, in a form that he labels "heterotopian," at book's end) an emancipated and egalitarian legal and political system in Brazil, we WOULD find many of the prerequisites for such a system already in place in the daily legal life of the FAVELA, one that lives under the heel of a dictatorial regime. Professional lawyers do not monopolize legal services; institutions are relatively autonomous, accessible and participatory, and much effort is (was) made to create and enforce dispute settlements rhetorically rather than violently (p. 248).

The "mirror" chapter three begins with a dense reflection on the nature of, and distinctions between, "self-portrait" and "autobiography." We are told that literary hermeneutics distinguishes between them. So does common sense. We learn that "self-invention...is the memory of memory, the reconstruction of a melted away memory" (p. 131). Kafka, St. Augustine, Shakespeare, Hume, Rousseau, Henry Adams, Kierkegaard, and Montaigne (the last in reference to farting), all have their say on the nature of self-revelation before we get to the author's story. But the story itself appeals in many ways. Those of us who have spent time in the field doing case studies and related ethnographic research probably know but have not expressed what the author says so well when he contrasts the "rigid, dead words" of our questionnaires and checklists with the richness of our personal experiences with our subjects (p. 217).

It is hard to describe the chapters that bracket the actual research. They dump a lifetime of academic observations and conclusions about anything related to law, the state, and the history of political thought (particularly post-Marxist socialism), into one book. From the FAVELA of chapters three we jump, for example, to a chapter four (125 pages long) dealing with globalization, the future of nation-states, and the possibility of a new "legal ecumenism." Besides verbosity and jargon (and the propensity to invent new words and phrases altogether, like "secondarized," p. 191, and "paramountcy," p. 201.), at least two other features prevent this book from helping others construct the common sense world it seeks.

--First, grand generalizations pop up a lot. For example:

Because modernity has replaced the concept of FORTUNA with the concept of risk, the context of trust has thereby expanded tremendously; it covers the risks and dangers of human action, from now on freed from divine injunction and endowed with a vastly increased transformative scope. (p. 102)

More perspicacious readers may have no trouble with that sentence, but I could ponder it (as I could most sentences in this book) for many minutes and end up with nothing but stimulating questions, e.g.,: A lot of folks play the lottery these days. Are they not moderns?

--Second, the author's main rhetorical device is to assert abstract descriptions. He even characterizes his research agenda as a "general coverage of the class-determined operation of the legal system in Brazilian society" (p. 195). More typically, we learn that the "emancipatory potential" of the "baroque feast"...resides in disproportion, laughter, and subversion" (p. 503); and we learn that capitalism developed in three periods: liberal, organized, and disorganized (p. 107). This is a book of many lists.

This book, then, will not contribute to the postmodern paradigmatic shift. Its catholic and provocative arguments could make a great read for an advanced scholar marooned on a desert island; they DO provoke a multitude of fascinating reflections. (ARE people who play the lottery "pre-modern?") Viewed from the traditions of European social thought, it is in many ways an admirable book. The author is humblingly knowledgeable. But postmodernism is the author's destination, when it should have been his starting point. At the core of this book is a sometimes angry classical European scholar. Still a bit incredulous that his traditions are "magnificent networks of misinterpretation, monuments of trained and specialized ignorance" (p. 167), he tries to explain and fit postmodern sensitivities into the very rhetorical tradition that postmodernism rejects. The paradigmatic transition that encourages us to seek knowledge that is useful because it is concrete, contingent, and ironic, need not produce a sentence that begins:

The second conclusion is that this extremely rich and complex process of transnationalization is inherently contradictory, and animated by dialectical tensions between deterritorialization and reterritorialization of social relations, globalization and localization, harmonization and differentiation.... (p. 375)

Someone who knows as well as this author that "the richness of the experience had nothing to do with the rigid, dead words..." (p. 217), need not have written this wordy, if passionately alive, book.

Copyright 1996 by the author