University of Toledo Law Review
This article proposes that certain laws or forms of law can be characterized as postmodern because they, like their counterparts in literature or architecture, share similar attributes. Consistent with postmodernism's rejection of modernism, these laws appear to defy the modernist attributes of unitary core principles or singular meaning and stasis. Instead, these postmodern laws are: fragmentary, decentralized, uncertain and allow a multiplicity of interpretations; they reject master-narratives and embrace paradox; they are grounded or rooted in daily life; and are also connected to the internet, cyber-space and high technology.
The identification and characterization of certain laws as postmodern have the paradoxical modernist effect of reducing or normalizing such otherwise uncertain law. More practically, however, this labeling, which is a modernist act, creates a normative tool for bridging the postmodern and modern. A shared dialogue can emerge where this new form of postmodern law can be identified, appreciated, critiqued, and placed in an historic context.
The use of postmodern as a label also keeps the concept of postmodernism alive at a time when members of the academy have called it dead or passe. Far from being dead, postmodernism is deeply entrenched in the law's lexicon and culture, much in the same way it is widely used and embedded in popular culture. To pretend it is dead or insignificant restricts the legal academy's ability to acknowledge postmodernism's contribution to the academy and its usefulness as a tool in both practice and theory.
In this article, the label postmodern is applied, as an example, to the privacy law that has emerged from the Safe Harbor Agreement between the United States and the European Union and which arose out of the EU Privacy Directive. By viewing the Agreement as a postmodern law, the weaknesses of the law from a modernist perspective are exposed, but its strengths, from a postmodernist and pragmatic perspective, can be appreciated. This article also applies the label to computer code that is deemed a form of law by scholars such as Lawrence Lessig. The label postmodern applied to code, highlights this law's ontological uncertainty and allusiveness under more traditional and modern definitions of law. It is the paradox of these laws being flexible and adaptable while simultaneously being normative that makes the postmodernist aspect of these laws valuable. In this postmodern era of technology and cyberspace, a postmodern law such as the Safe Harbor Agreement, is likely to be the model for future legal regimes that can be flexible, dynamic, evolving, and multifaceted while still providing for the normative needs of regulation in the emerging global legal system.
Copyright © 2008, University of Toledo Law Review
University of Toledo College of Law
Todd, Adam, "Painting a Moving Train: Adding ‘Postmodern’ to the Taxonomy of the Law" (2008). School of Law Faculty Publications. 18.