2 - Toward an Oppositional Postmodern Understanding of Law

Summary

In this chapter, I argue that the conversion of modern law into scientific state-centered law went hand in hand with the conversion of modern science into a hegemonic rationality and a central productive force. I concentrate in the gradual process whereby modern law came to be dominated by science and the state. I claim that in this process law lost sight of the tension between social regulation and social emancipation that was imprinted in its roots in the paradigm of modernity. The loss was so thorough and irreversible that the recovery of the emancipatory energies called for in this book must involve a radical unthinking of modern law. The first section analyzes the original imprint of the tension between regulation and emancipation in modern law, selecting three of its major moments: the reception of the Roman law, the rationalist natural law, and the theories of the social contract. In the second section, I analyze the historical process by which this tension was eliminated by the collapse of emancipation into regulation, distinguishing among three periods of capitalist development: liberal capitalism, organized capitalism, and disorganized capitalism. Finally, I state the major topics for the unthinking of law in the transition between social paradigms.