POSTMODERNISM Modernism.

To understand postmodernism on its relevance to legal and political theories is to have knowledge of its dichotomy which is modernism/postmodernism. Modernism is the form of thought identified with spirit of the Enlightenment. it replaced the medieval emphasis on custom, ritual, authority, and cosmology with a self-conscious preoccupation with legitimacy, progress, civility, rationality, and human emancipation. It is exemplified by axes (a) Epistemological Foundationalism, (b) Theory of Language, and (c) Individual and Community. Each is not to be construed as part of the whole but an axis when taken with others, enables one to see a broad range of thinkers as all-of-a-piece. In Epistemological Foundationalism, knowledge can only be justified to the extent it rests on indubitable foundations. According to Rene Descartes, knowledge deal with a problem certainty. It requires a method to separate belief from illusion which focused on the problem that knowledge has to be certain. Ren Descartes invented the method of doubt that validates belief by submitting an inner or mental tribunal for interrogation, those survived the process are known to be clear and distinct. the process led to valorization of mathematical, science and geometry which Descartes found these cases the most certain which are the axiom, system and deduction. Empiricism is the other Foundationalist approach which derives a refined impression of a thing which exists in space and time when sought without resort to anything in the mind is the gravamen of empiricism. Its basis is the sense impressions which is a raw input of the outside world. And are the only ground of knowledge. This element concerns mainly on foundation adequacy of construction of foundation. Theory of language function is it represents idea or state of affairs of it expresses the attributes of the speaker. It refers to objects from the world and how the world refer to things. Ludwig Wittgenstein expresses in his program logical atomism which emphasizes the reduction of the elements of sentences to their constituent parts in the world. The collectivist constitute social facts which shape or mold a person or acknowledges forces beyond the control of human beings. In a collectivist's view, one can only be free and rational when with their decision that they are able to become aware of and break free from the structure their choices. Postmodern Thought. A reflection which departs significantly from one or more of the three axes of modernist thought is a postmodern thought. The postmodern thought views the departure from modernist premises

on a discipline-by-discipline basis, considering that different relative disciplines concentrate on one axis to the exclusion of others. For example, the modernist political theory is a struggle between individualists at one end and collectivists on the other. The specific struggle is over the fundamental ontological unit: the individual or the group. The postmodernist departure is to reject those two categories in favor of practices as the basic unit of social analysis. Postmodernism in the mid-twentieth century Willard Van Orman Quine In Quines view the modernist conception of knowledge as a process of building from the simple to the complex, and the concomitant notion that truth is a matter of resonance between word (concept) and world, could not be maintained. He substituted holism for foundationalism. On a holist account, the truth of any one statement of proposition is a function not of its relationship to the world but of the degree to which it hangs together with everything else taken to be true. His view: The totality of our so-called knowledge or beliefs, from the most casual matters of geography and history to the profound laws of atomic physics or even of pure mathematics and logic, is a man-made fabric which impinges on experience along the edges. Or, to change the figure, total science is like a field of force whose boundary conditions are experience. A conflict with experience at the periphery occasions readjustments in the interior of the field. Truth values have to be redistributed over some of our statements. Reevaluation of some statements entails reevaluation of others, because of their logical interconnections the logical laws being in turn simply certain further statements we must reevaluate some others, which may be statements of the system, certain further elements of the field. Having reevaluated one statement we must reevaluate some others, which may be statements logically connected with the first or may be the statements of logical connections themselves. But the total field is so underdetermined by its boundary conditions, experience, that there is much latitude of choice as to what statements to reevaluate in the light of any single contrary experience. No particular experiences are linked with any particular statements in the interior of the field, except indirectly, through considerations of equilibrium affecting the field as a whole. The term meaning holism (together with variants like semantic holism and linguistic holism) has been used for a number of more or less closely interrelated ideas. According to one common view, meaning holism (MH) is the thesis that what a linguistic expression means depends on its relations to many or all other expressions within the same totality. Sometimes

these relations are called conceptual or inferential. A related idea is that what an expression means depends, mutually, on the meaning of the other expressions in the totality, or alternatively on some semantic property of this totality itself. The totality in question may be the language to which the expressions belong, or a theory formulation in that language. In this sense MH is contrasted e.g. with so-called atomistic theories, according to which each simple expression can have a meaning independently of all other expressions, or molecular theories according to which there are meaning dependencies but restricted to smaller parts and often unidirectional. Meaning holistic ideas were introduced into analytic philosophy in the early 1950s, in works by Carl Gustav Hempel (1950) and Willard Van Quine (1951), both concerned with the meaning of theoretical sentences in the formulation of a scientific theory. Hempel articulated an idea of interdependence among expressions: In order to understand the meaning of a hypothesis within an empiricist language, we have to know not merely what observation sentences it entails alone or in conjunction with subsidiary hypotheses, but also what other, non-observational, empirical sentences are entailed by it, and for what other hypotheses the given one would be confirmatory or disconfirmatory. In other words, the cognitive meaning of a statement in an empirical language is reflected in the totality of its logical relationships to all other statements in that language, and not to the observation sentences alone. (Hempel 1950:181) Hempels idea was a way of accounting for the fact that in general, a theoretical sent ence does not alone, but only together with other theoretical sentences, imply observation sentences. This, sometimes called confirmation holism, or epistemological holism, was even more emphasized by Quine. In setting out his views on sentence meaning, he employed the more austere notion of empirical content. Roughly, the empirical content of a sentence is the set of possible experiences that confirm it. Quine then characterized total science metaphorically as a field of force with observation sentences at the periphery, confronting experience, and theoretical sentences in the interior: If this view is right, it is misleading to speak of the empirical content of an individual statementespecially if it is a statement at all remote from the experiential periphery of the field. (Quine 1951:43) The unit of empirical significance is the whole of science. (Quine 1951:42). This has often been taken as implying that it is the whole theory formulation that has meaning in the first place, and that theoretical sentences and sub-sentential expressions, have meaning (but not empirical content) in a derivative way. So understood, it is one example of the idea that the meaning of individual expressions depends on the totality to which they belong.

Hempels view, though clearly anticipating later holistic ideas, did not have a great influence, but Quines did. In particular, it has been correctly pointed out that if you combine confirmation holism with a form of verificationism, or some similar epistemic conception of sentence meaning, then a form of meaning holism results, provided the meaning of sentence is understood as something like its total contribution to the empirical content of the theory. Because of confirmation holism, the contribution of a theoretical sentence depends on the contributions of other sentences, and therefore the meaning of the sentence depends on the meaning of other sentences. The breakthrough from Quines picture of knowledge was to see it not as a matter of foundations building up from bedrock but a function of ones being able to move about within a holistic web (be it a web of theory or intersubjective web). It is in the move from simplicity, reductionism and foundations to holism, network, and totality that Quines epistemology is rightly described as postmodern. Quines embrace of holism, together with his pragmatism on questions of truth, invite comparison with the second of the three aspects of modernism which are displaced in postmodernity, that of the referential theory of language. Language has been a central concern of philosophy in this century. In a postmodern approach to language, the modernist picture of sentence-truth-world is replaced with an account of understanding that emphasizes practice, warranted assertability, and pragmatism. The principal contemporary exponent of the pragmatist approach to truth is Richard Rorty. He summarizes his position this way: For the pragmatist, the notion of truth as something objective is just a confusion between (I) Most of the world is as it is whatever we think about it (that is, our beliefs gave only limited causal efficacy) and (II) There is something out there in addition to the world called the truth about the world (what James sarcastically called this tertium quid intermediate between facts per se, on the one hand, and all knowledge of them, actual or potential, on the other). The Pragmatist wholeheartedly assents to (I)not as an article of metaphysical faith but simply as a belief we have never had any reason to doubt and cannot make sense of (II)... William James's version of the pragmatic theory is often summarized by his statement that "the 'true' is only the expedient in our way of thinking, just as the 'right' is only the expedient in our way of behaving." By this, James meant that truth is a quality the value of which is confirmed by its effectiveness when applying concepts to actual practice (thus, "pragmatic"). James's pragmatic theory is a synthesis of correspondence theory of truth and coherence theory of truth, with an added dimension. Truth is verifiable to the extent that thoughts and statements correspond with actual things, as well as "hangs together," or coheres, fits as pieces of a puzzle might fit together, and these are in turn verified by the observed results of the application of an

idea to actual practice. James said that "all true processes must lead to the face of directly verifying sensible experiences somewhere." He also extended his pragmatic theory well beyond the scope of scientific verifiability, and even into the realm of the mystical: "On pragmatic principles, if the hypothesis of God works satisfactorily in the widest sense of the word, then it is 'true.' " Truth, as any dictionary will tell you, is a property of certain of our ideas. It means their 'agreement', as falsity means their disagreement, with 'reality'. Pragmatists and intellectualists both accept this definition as a matter of course. They begin to quarrel only after the question is raised as to what may precisely be meant by the term 'agreement', and what by the term 'reality', when reality is taken as something for our ideas to agree with. (James 1907, 198). William James (1907) begins his chapter on "Pragmatism's Conception of Truth" in much the same letter and spirit as the above selection from Peirce (1906), noting the nominal definition of truth as a plausible point of departure, but immediately observing that the pragmatist's quest for the meaning of truth can only begin, not end there. The popular notion is that a true idea must copy its reality. Like other popular views, this one follows the analogy of the most usual experience. Our true ideas of sensible things do indeed copy them. Shut your eyes and think of yonder clock on the wall, and you get just such a true picture or copy of its dial. But your idea of its 'works' (unless you are a clockmaker) is much less of a copy, yet it passes muster, for it in no way clashes with reality. Even though it should shrink to the mere word 'works', that word still serves you truly; and when you speak of the 'time-keeping function' of the clock, or of its spring's 'elasticity', it is hard to see exactly what your ideas can copy. (James 1907, 199). James exhibits a knack for popular expression that Peirce seldom sought, and here his analysis of correspondence by way of a simple thought experiment cuts right to the quick of the first major question to ask about it, namely: To what extent is the notion of correspondence involved in truth covered by the ideas of analogues, copies, or iconic images of the thing represented? The answer is that the iconic aspect of correspondence can be taken literally only in regard to sensory experiences of the more precisely eidetic sort. When it comes to the kind of correspondence that might be said to exist between a symbol, a word like "works", and its object, the springs and catches of the clock on the wall, then the pragmatist recognizes that a more than nominal account of the matter still has a lot more explaining to do.

Law and Postmodernism.

The end of the modern era. To understand postmodernism, u need to understand what the modern era was: the era of the enlightenment, that everything can be understood through reason, science and that technology will be the salvation of humanity. In postmodernism, reason let us down and technology has become our enemy and in fact our downfall. The investigation of truth in law turns out to be the effort to describe what lawyers do with language. The modernist, referential approach preoccupies itself with the ways in which legal language represents, depicts, and captures the world. Those who deny such a referring relation have left themselves little in the way of alternatives to relativism or crass conventionalism. We need not embrace these two unpalatable alternatives. But if jurisprudence is to be an account of what lawyers do, what is to be said of truth? Let us now turn to that question. What postmodernism achieves is a shift from a concept of language as representation to language as practice (meaning as use). It is a move from picturing to competence, with competence being a manifested ability with and facility in a language. Of course, our immediate concern is with the special language of law. Law is an activity driven by assertion. As Dworkin puts it so well, propositions of law statements and claims people make about what the law allows or prohibits or entitles them to have (Dworkin, 1986 , p. 4) can be quite general or quite specific. Propositions of law may range from The Fourteenth Amendment prohibits the denial of equal protection to Jones has violated the motor vehicle code by exceeding the speed limit. How in the law do we go from assertion to truth? To answer this question, we need to know something about the nature of legal argument. Claims in law are assertive in nature. The claim Ordinance S is unconstitutional purports to assert a truth. To ask what it is about S which prompts one to assert its unconstitutionality is to ask for the ground of the claim S is unconstitutional. Supp ose S states the following requirement: Any assembly of 12 persons or more requires a parade permit. This fact is the ground for the claim that S is unconstitutional. The ground is advanced in support of the claim. But, one might ask, what connects the ground to the claim? This is to ask how the ground is relevant to the claim. What is sought is the warrant. In the case of S, the warrant is the First Amendment to the United States Constitution. The First Amendment, which provides for the right to peaceable assembly, is the warrant that provides the connection between the ground and the claim. Of course, the text of the First Amendment is not self - executing. There is more to the move from ground to claim than resort to a warrant. In addition to invoking a warrant, the warrant must be used in the right way. This is where the forms of argument come into play. The forms of argument are culturally endorsed modes for the use of warrants. The forms of argument are the backings for warrants. Philip Bobbitts account of argument in constitutional law provides the best example of the role of argument in law. In brief, Bobbitt argues that the practice of constitutional interpretation is a matter of using six forms of argument (he refers to them as modalities) to show the truth of propositions of constitutional law.

The following six modalities are the forms of argument in constitutional law: 1. historical (relying on the intentions of the framers and ratifiers of the Constitution); 2. textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary man on the street ); 3. structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); 4. doctrinal (applying rules generated by precedent); 5. ethical (deriving rules from those moral commitments of the American ethos that are reflected in the Constitution); and 6. prudential (seeking to balance the costs and benefits of a particular rule) (Bobbitt, 1992, pp. 12 13) Justification the activity of showing the truth of a legal proposition is a matter of employing the modalities. To be legitimate, a constitutional argument must remain within the modalities. The modalities themselves, either alone or in combination, can never be legitimate, for they are the means by which legitimacy is maintained (through their use in argument). The modalities are the constitutional grammar of justification. Use of forms of argument to show the truth of legal propositions does not exhaust the argumentative activities of lawyers. What counts as a form of argument may itself be called into question. Additionally, lawyers debate the criteria by which they judge what is to count as an appropriate form of argument. Let us consider some examples. Judge Richard Posner has challenged conventional beliefs about the status of facts of legislative history. Judge Posner has argued that the canons of statutory interpretation are an improper guide to the meaning of statutes because they are based on false assumptions regarding the nature of the legislative process. The basic assumption Posner calls into question is an imputation of omniscience to Congress: Most of the canons of statutory construction go wrong not because they misconceive the nature of judicial interpretation of the legislative or political process but because they impute omniscience to Congress. Omniscience is always an unrealistic assumption, and particularly so when one is dealing with the legislative process. The basic reason why statutes are so frequently ambiguous in application is not that they are poorly drafted though many are and not that the legislators failed to agree on just what they wanted the statute to accomplish in the statute though often they do fail but that a statute necessarily is drafted in advance of, and with imperfect application for the problems that will be encountered in, its application. (Posner, 1985 , p. 811)

As an example of a canon founded on the assumption of legislative omniscience, consider that of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Posners point one that is well taken is that the canon would only make sense if all omissions in legislative drafting were deliberate (Posner,1985 , p. 813). As an example, Posner raises the Supreme Court s decision in Touche Ross & Co. v. Redington, 442 US 560 (1979), where the Court used the canon as the basis for refusing to create private remedies for certain statutory violations (Posner, 1985 , p. 813). Posner objects: Whether the result in the private - action cases is right or wrong, the use of expressio unius is not helpful. If a statute fails to include effective remedies because the opponents were strong enough to prevent their inclusion, the courts should honor the legislative compromise. But if the omission was an oversight, or if Congress thought that the courts would provide appropriate remedies for statutory violations as a matter of course, the judges should create the remedies necessary to carry out the legislature s objectives. (Posner,1985 , p. 813) Law and Truth is a work of jurisprudence, rather than an essay on interpretation per se, and it contains no generalized discussion of statutory interpretation theory or practice. Yet, a significant portion of the book is devoted to statutory interpretation cases, and Patterson frequently uses such cases to demonstrate the operation of his theory and the limitations of other approaches. This is especially true of Patterson's concluding chapter, in which he presents his own comprehensive vision of law and legal theory. Statutory interpretation may thus be a convenient window through which to observe Patterson's theory in action and to test it against the vagaries of real world experience. By calling into question certain of the assumptions of the historical form of argument, Posner turns what is normally backing (historical argument) into something which itself requires backing. What Posner calls into question are certain of the beliefs and assumptions of the historical form of argument. Posner is not rejecting legal argument per se, nor is he putting in question any other aspect of legal reasoning. His is a quite specific and localized complaint. In fact, much of the strength of his criticism is drawn from the fact that he is able to make his points about unrealistic historical assumptions without upsetting any other part of the system of beliefs. We must take matters one step further to complete our account of the typology of argument in law. Consider a direct challenge to the efficacy of a form of argument. Let us stay with historical argument. Together with textual and doctrinal argument, historical argument is among the most common of the forms of argument. In American jurisprudence, lawyers often ask what motivated a legislature to draft the law as they did. The focus is often on a problem, issue, or set of historical circumstances to which the legislature or Congress was responding when the legislation in question was drafted. In short, appeal to history as a guide to purpose and intent is a cardinal move in the lawyers argumentative framework.

Patterson's views on statutory interpretation may be determined deductively, from his broader jurisprudence, and inductively, from his treatment of individual cases. A review of the latter category suggests that Patterson is critical of decisions that enunciate any one overriding rule or principle of statutory interpretation, particularly when such a principle depends on extralegal theories or norms. Instead, he prefers a balanced approach that seeks to harmonize new with old interpretations and that does the least possible damage to the existing practice and belief within a given area of law. This approach is consistent with Patterson's broader jurisprudence, which emphasizes fidelity to the forms of legal argument and decisions that "clash least with everything else we take to be true." Among contemporary interpretation theories, Patterson's appears closest to a pragmatic or practical reason approach, but it exhibits a marked emphasis on doctrinal and prudential considerations, as well as a strong sense of the limited scope of the interpretation (versus simple understanding) of statutes.

In United Steelworkers of America v. Weber, 443 US 193 (1979), the Supreme Court of the United States considered the legality of a private affirmative action plan for skilled workers. The case generated majority, concurring, and dissenting opinions. A central focus of each opinion was the legislative history of Title VII. There was much debate among the justices as to the meaning of various aspects of the record. The form of argument each employed was historical argument. I want to consider William Eskridges challenge to the conventional understanding of the historical form of argument at issue in Weber. In Dynamic Statutory Interpretation, Eskridge describes two perspectives that are usually brought to bear in the interpretation of statutes: (1) the statutory text, which is the formal focus of interpretation and a constraint on the range of interpretive options available (textual perspective); (2) the original legislative expectations surrounding the statute s creation, including compromises reached (historical perspective). (Eskridge, 1987 , p. 1483) To these two perspectives, which we recognize as the textual and historical forms of argument, Eskridge adds a third, the evolutive perspective, which he describes as: the subsequent evolution of the statute and its present context, especially the ways in which the societal and legal environment of the statute has materially changed over time. (Eskridge, 1987 , p. 1483) In an effort to make his argument against the background of conventional understanding of legal argument, Eskridge notes that when the statutory text clearly answers the interpretive question it normally will be the most important consideration (Eskridge, 1987 , p. 1483). Of course, the ordinary meaning of the text is not always dispositive, as was the case in Weber.

When text is not dispositive, the door opens for dynamic statutory interpretation. Why is Weber a good candidate for dynamic statutory interpretation? Eskridge regards the question in Weber as one particularly amenable to dynamic analysis because it recognizes not only that the very nature of the problem had changed since 1964, but also that the legal and societal context of Title VII had changed. In 1964, the legal culture legislators, judges, administrators, and commentators focused on how to root out discrimination inspired by racial animus. People thought that rooting out actual prejudice would create a color - blind society. The intellectual focus changed over the next fifteen years, as the legal community came to realize that discrimination could be just as invidious even when it could not be established that prejudice was at its root. The concept of the continuing effects of historical patterns of discrimination suggested that current institutions might perpetuate discrimination even though no one in those institutions remained personally prejudiced. This insight was not a historical concern of the 1964 Act, but it evolved into a current concern and was recognized in subsequent statutes, judicial decisions, and commentary. (Eskridge, 1987 , p. 1493) While Eskridge labels his argument evolutive, the argument is clearly historical in nature. The point of the argument is to put in question the conventional limits on historical argument, which preclude asking anything about history other than from the then - present perspective. Eskridge puts the historical form of argument in question by making the case for the legal significance of failed legislative aspirations. Where the text of a statute is unclear, as he argues it was in Weber, and history demonstrates a clear historical aspiration on the part of Congress, subsequent history (both social and legal) should play a justificatory role in cases like Weber. While emphasizing doctrinal and prudential concerns, Patterson remains skeptical of universal interpretive principles, particularly of a simplistic purposivism that requires a single, overriding purpose to be ascribed to a particular statute.
The Postmodern State Post modernism tells us that the state evolves as the circumstances and situations surrounding it is constantly changing. In times of war for example, post modernism contends that there must be ever changing strategies to cope with the demands of the dark era of society. In the era of Napoleon,the State took the form of a state nation (Bobbitt, 2002 ). This form of the State drew its legitimacy from its forging of a nation out of disparate peoples and territories. This process has both strategic and trade dimensions: it results in the establishment of a state founded on discrete boundaries, a solid identity associated with the nation, an industrial and commercial base owned and operated by the nation, and the ultimate transformation of the State as a force that unleashes the power of the nation to solidify itself to one that dedicates itself to the welfare of the nation.

However, in post modernism, this is not the case. Post modernism encourages deviating from the norms or from strict delineations. It means breaking the strict boundaries as what happened in the era of napoleon. The modern nation state draws its legitimacy from two promises: security for the homeland and an increase in welfare for the nation. Welfare is to be understood not simply as subvention from the state to the nation but includes development of legal regimes that improve the lives of citizens. The modern administrative state is the product of the nation state and a reflection of its commitment to bettering the lives of citizens through law. In meeting these challenges, the State must legitimate itself through a new approach to strategy, one that requires not only new forms of defense but new ideas of war and law (Bobbitt, 2002, 2008 ). In terms of welfare, the State will evolve from a regime of entitlements to one of incentives. States will continue to decrease their traditional forms of direct subvention, replacing and supplementing them with the provision of economic opportunities for the nation. Relations between states will be to the same effect. In developing states, direct aid will be supplanted by incentive - driven packages that bring together states, multinational corporations, and nongovernmental organizations on an ad hoc basis to address problems of underdevelopment as well as cross - border threats to health and welfare. These changes will be reflected in a new form of the state, the Postmodern State (Patterson & Afi lalo, 2008 ).

Conclusion Postmodernism represents a new way of understanding the development of analytic philosophy in the twentieth century. When we see modernism all - of - a - piece, composed of the three axes that comprise it, we cannot help but see analytic philosophy since mid - century as representing a significant departure from the concerns of modernism. Postmodernism represents a compelling new way to approach the questions that animate analytic philosophy. Philosophy of law or jurisprudence in the twentieth century has been largely uninformed by questions in metaphysics and epistemology, preferring to dispute the borders between legal discourse and ethical discourse. Postmodernism presents the opportunity to consider these other issues from the legal point of view.

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