A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory

Abstract

Postmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous bad faith refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can challenge theory without theorizing. Is theory defined by its practical effects, or by its refusal to become complicit in everyday practices? Is the urge to theorize a product of modernist ideology that leads us astray, or our openness to enlightenment? Although postmodern thinking has made these questions particularly pressing, they are timeless. Therefore, it should not be surprising that contemporary readings of Aristotle can provide a helpful guide for uncovering the possibilities of postmodern legal theory. I address the postmodern puzzle regarding the nature of theory and its relationship to practice by drawing from the contemporary appropriations of Aristotle's practical philosophy by Martin Heidegger, Hans-Georg Gadamer and Joseph Dunne. My goal is to outline the role that critical legal theorists can play in light of the neo-Aristotelian account of theory that emerges from this discussion. Although this account reinforces the postmodern critique by revealing that the image of the sovereign theorist who stands as expert commentator to the side of legal and social practices is an ideological myth, this does not mean that theory is irrelevant. Once theory is reconceived as a disposition within practice, its unavoidable significance becomes clear. The practical demand for judgments, combined with the normative injunction to do justice, makes law a particularly important venue for investigating the entwinement of theory and practice. I conclude by suggesting that critical legal scholarship by Bill Eskridge and Kathryn Abrams provide examples of this dynamic of theory and practice.