Some Post-Modern Perspectives on Law and Society

Abstract

Law is a text. Or law is found in texts. The great obsession of post-modernity is that 'all is text'. There is no distinction between text and context. All is surface, a portion of the intertext.1 What can such polemics mean? More post-modern punchlines are: the texts are self-referential; they are signifiers without a signified. This language is not immediately intelligible, but it can, nonetheless, have a powerful impact as an instrument of social diagnosis if it is recognized that legal/juridical language has become, or has in fact always been, a system of signs which does not have a real as distinct from a prior-textual referent outside itself. The language of the law is to be seen, in a post-modern perspective, as a 'system of ephemeral variables in an eternally repeating machine of identification and rejection'.2 We propose to place the main weight of this article in case studies which, we hope, both illustrate and demonstrate that such an understanding of Law provides an accurate explanation of what is happening in numerous legal controversies. We examine the parameters of the debate in the Calcutt Report: Report of the Committee on Privacy and Related Matters (1990; Cmnd. 1102) to study what might be regarded as a traditional area of the law: a civil right to freedom of expression. We examine how far the latter holds sway over a possible right to privacy, as a stark instance of the supremacy of the text over its potential object/referent/victim. In a study of the Butler-Sloss Report: Report of the Inquiry into Child Abuse in Cleveland 1987 (1988; Cmnd. 412), we enter what might be regarded as a newer area of regulatory or social welfare law, where the state or society is supposed to be acting affirmatively to protect the individual. We look at the extent to which instruments of social control and regulation may become, or are, ends in themselves which do not permit or even need the objects of their care to speak. Both the issues of freedom of expression and a medical test (anal dilatation) are signifiers which take on a life of their own. They appear to be frenetically reproducing themselves,