Vol. 10 No. 4 (April 2000) pp. 287-290.

AMERICAN LEGAL THOUGHT FROM PREMODERNISM TO POSTMODERNISM: AN INTELLECTUAL VOYAGE by Stephen M. Feldman. New York: Oxford University Press, 2000. 272pp.

Reviewed by Keith J. Bybee, Department of Government, Harvard University.

 

In this relatively short volume, Stephen M. Feldman recounts the history of American jurisprudence from the founding to the present. His basic argument is that the development of American legal thought broadly recapitulates the development of western thought. While philosophers took over millennia to move from "premodernism through modernism and into postmodernism," American legal thinkers made the same trip "in just over two hundred years" (p. 3). Thus, according to Feldman, the history of American jurisprudence should be understood "as a coherent albeit unplanned intellectual voyage over previously charted waters" (p. 3). Feldman's argument is an ambitious one. He covers a great deal of ground, weaving information from a host of primary and secondary sources around a straightforward storyline. The broad sweep of the book makes it a good choice for those seeking an introduction to the general movements in American jurisprudence. For those already familiar with American legal thought, the value of the book will most likely vary along with readers' views of postmodernism.

Feldman begins with a brisk overview of western thought, relying on the terms "premodernism," "modernism," and "postmodernism" to designate distinct stages. He further divides each of these stages into various substages that mark critical transitions. Feldman argues that premodernism began with the ancient Greeks and was distinguished by "an abiding faith in nature or God (or the gods) as a stable and foundational source of knowledge and value" (p. 11). In its initial substage, premodernism posited a specific relationship between the observed flux of experience and the ultimate stability of the cosmos: "[c]ivilizations would rise and fall in a type of 'cyclic motion,' but the eternal and universal principles remained in tact" (p. 12). With the coming of the Christian era, premodernism eventually abandoned this "cyclical" perspective and moved into an "eschatological" substage. During this period, faith in universal principles remained, but the relationship between the secular and spiritual worlds assumed a different shape. Instead of being locked in an endless cycle of rise and decline, the secular world was understood to progress gradually toward the "fulfillment or realization of the eschatological City of God" (p. 14). As the split between secular and spiritual worlds widened during the Protestant Reformation, Feldman argues that modernism gradually displaced premodernism. Individuals began to focus on the pursuit of their own purposes strictly within the secular realm, rejecting divine

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principles as the limit of progress and embracing the idea that material conditions might be endlessly improved by human ingenuity. Yet, even as modernists pushed the secular and spiritual planes further apart, they longed for the kind of epistemological certainty that existed when the two planes were unified. The quest for an alternative set of fixed foundations consequently dominated modernism in all it substages, accounting for the movement from "rationalism" (where Descartes anchored knowledge in abstract reason) to "empiricism" (where Locke found stable ground in the external world) and, ultimately, to "transcendentalism" (where Kant derived ultimate principles from the preconditions of reason itself). For modernists, Feldman argues, "the identification of epistemological foundations became a (or perhaps the) central issue or problem. The enormity and significance of this challenge cannot be overstated" (p. 22). Indeed, Feldman claims that the ever more frantic search for foundations produced the final substage of modernism. He describes this period as a period of "late crisis," characterized by "deep despair, anxiety, anger, accusatory denunciations, and increasingly intricate modernist 'solutions' that pick and choose from rationalism, empiricism, and transcendentalism, all the while adding layers of complexity" (p. 28). According to Feldman, it is only in our own time that the relentless modernist search for objective foundations has been superseded. With the aspersions cast on human rationality by the Holocaust, the criticisms of universalism raised by cultural pluralism, and the explosion of information generated by technological innovation, the modernist project has become less plausible. "We live by skimming along the surface, moving in hyperspeed, jumping among hyperlinks, living a hyperlife" (p. 29). Postmodernism is rooted in recognition of our current "hyperlife" and a refusal to pursue epistemological foundations, endless social progress, or individual control in such a context. Postmodernists subsequently revel in uncertainty and contingency, substituting irony and paradox for modernist anxiety and despair.

With this typology of western thought in hand, Feldman proceeds to examine to American jurisprudence. His legal tale is peppered with a wide variety of political, economic, and sociological details - so much so that his account sometimes reads like a primer on American legal development. Amid the welter of detail, Feldman finds every stage of philosophical development represented. In the early years of American history, Feldman discerns a body of premodern legal thought, marked by a faith in the fixed foundations of natural law. These natural law foundations received different renderings as the American premodernists, like their philosophical predecessors, moved through two substages. First, from the Founding to the early nineteenth century, there was a cyclical period of civic republicanism in which jurisprudents sought to sustain a unified social order even as they worried about the decline of the Republic. Second, from the 1820s until the Civil War, there was an eschatological period in which jurisprudents worked to make law an instrument of endless economic prosperity. Feldman argues that premodern legal thought ultimately foundered on the shoals of slavery. In the years leading up to the Civil War, natural law arguments were invoked to justify slavery as well as to advocate its abolition. The articulation of such incendiary, mutually exclusive arguments made natural law suspect. It ushered in a modernist search for alternative

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foundations. "Before the Civil War, the principles of natural law had provided a theoretical foundation for the American legal system, but this foundation had suddenly crumbled. What could serve as a new foundation?" (p. 91). In the first substage of modernist jurisprudence, rationalists like Christopher Columbus Langdell sought a foundation in abstract reason and logic. In the second substage, critics of rationalism like the Legal Realists sought stable ground in the empirical studies. In the third substage, legal thinkers took a transcendentalist turn, deriving a foundation from claims about the necessary preconditions of legal process. Finally, trying to make sense of Warren Court activism, American scholars plunged into late crisis, "turning every which way as they struggled to satisfy the foundational demands of the modernist worldview" (p. 128). In the late 1970s and early 1980s, under the influence of thinkers like Stanley Fish, Thomas Kuhn, Richard Rorty, Hans-Georg Gadamer, some legal scholars finally broke off the modernist search for foundations. Rather than wondering whether law could be established on an objective basis, they simply began to examine how legal interpretation occurred. Feldman documents the rise of this postmodernist jurisprudence at some length, canvassing critical legal studies, critical race theory, law and literature, feminists, and gay and lesbian studies. Although the fit between these various approaches is sometimes uneasy, Feldman argues that they all cluster around common themes. These themes include a rejection of foundationalism, a defiance of intellectual boundaries, a celebration of paradox; a commitment to irony and self-reflexive study, a focus on the generative capacities of power, an emphasis on the social construction of the self, and political ambivalence. These themes together constitute the postmodern view, providing the platform from which subsequent movements in legal thought will develop.

What can be made of Feldman's book? The sweep of his argument invites at least three lines of criticism. First, one could argue that Feldman's categories are too simple. Like the postmodern "hyperlife" he describes, Feldman often skims along the surface, producing a typology with little depth. His account of philosophical stages, for example, altogether excludes important figures like Dewey and devotes only one paragraph to explaining Kant's transcendentalism. Second, once could argue that the history Feldman covers is far messier than his analytical framework. As Feldman's own account of legal thought reveals, many important elements of modernism existed in the premodern period and persist in the postmodern era. Such thematic overlap is complicated by the dizzying variety of causal factors that Feldman mentions in no clear order. The result is destabilizing and calls into question the characterization of Feldman's periods. Finally, one could argue that Feldman has skewed his argument with an implicit notion of progress, presenting a picture of postmodernism as not only "current," but also "superior" by virtue of being the latest intellectual development. Feldman deals with the first two criticisms by accepting them. He readily acknowledges that his categories are imperfect, that they leave out a figures and arguments that might otherwise be included. His stages and substages are merely "heuristic devices," (p. 3) which he uses to "narrate" (p. 5) his argument. The selection of voices is based on the story Feldman wishes to tell. "Without a doubt, one could

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define premodernism, postmodernism, and postmodernism differently and could therefore argue that the various stages emerged at other points in American legal history" (p. 7). The value of Feldman's interpretation is not to be found in its abstract truth, so much as in it's power of explanation. As he notes, "Ultimately, then, the focus on all the stages of American legal thought - premodernism, modernism, and postmodernism - distinguishes this book from other historical treatments of American jurisprudence" (p. 10). Moreover, because his focus is on the power of explanation, Feldman remains relatively unconcerned about charting clear boundaries between stages or about tracing precise lines of causation. It is the coherency of the overall story, not the order of details, which matters. In accounting for the legal movement from modernism to postmodernism, for example, Feldman arrives at his conclusion by explicitly lumping together a wide array of causal factors ranging from the decline of public consensus to the rise computer-assisted legal research (pp. 162-63). Such an approach is most likely to appeal to those sympathetic with postmodernism as Feldman presents it. This is not an accident. Feldman's sympathies are clearly with postmodernism from start to finish. In fact, he draws his own basic conception of intellectual history from Thomas Kuhn, an author he later identifies as a key postmodernist (pp. 5-6, 151-52). Of course, the use of postmodernist ideas is not inherently problematic. Yet, the difficulty here is that Feldman never considers the consequences of using postmodernist tools to relate the history of postmodernism and its rivals. The unreflective use of postmodern premises stacks the decks against premodernism and modernism from the start. Thus, even though Feldman initially states that his story is not one of progress (in the sense that postmodernist jurisprudence is not inherently "better" than the alternatives), his disclaimer is belied by his extended advocacy of postmodern positions. Feldman rarely discusses the limits of postmodernism and suggests that any future jurisprudential theories will inevitably be framed within postmodern terms (p. 198). Indeed, he concludes that we live in a postmodern culture that infuses even those who are not overt postmodernists with postmodern ideas (p. 182). In this vein, he alternatively presents contemporary modernists as "shrill" critics fighting to defend out-moded boundaries (p. 168) or benighted souls locked in a self-identified role (pp. 177-78). In sum, Feldman's book works best as an introduction to American legal history. It is clearly written, easy to follow, and covers a great deal of ground. His book is less successful as an interpretation of legal development. His endorsement of postmodernist jurisprudence is most likely to persuade those readers who already share Feldman's postmodernist sensibilities.

 

Copyright 2000 by the author, Keith J. Bybee.