The Politics of Postmodern Jurisprudence

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on two recent and seemingly opposed articles: Dennis Patterson’s The Poverty of Interpretive Universalism: Toward the Reconstruction of Legal Theory and J.M. Balkin’s Transcendental Deconstruction, Transcendent Justice. Patterson directly assails postmodern interpretivism, which he refers to as “interpretive universalism” and “hermeneutic holism.” According to Patterson, we must reject interpretivism because it necessarily leads to an infinite regress of interpretations: interpretivism sends us reeling into an abyss where we can never grasp the meaning of a text because it constantly slips away into another interpretation, another meaning – and another, and another, and another. In contrast to Patterson, Balkin identifies himself as a deconstructionist – a type of postmodern interpretivist – and in fact, Balkin’s article can be read as an effort to respond to Patterson’s concerns. Balkin acknowledges and directly confronts the potential nihilism of deconstruction, and in doing so searches for a source of human values. Specifically, Balkin attempts to identify the source of the human desire or drive for justice. He concludes that “transcendent values,” including justice, arise from “the wellsprings of the human soul,” which transcend “the creations of culture.”