On the Whole Postmodern in Law and Economics Thing January 18, 2012
Victor Davis Hanson, in this attached essay, claims that President Obama has a postmodern vision of law. I am not necessarily going to argue that point. I have maintained, already, that President Obama has what I call an allergy to antithesis. But I did feel moved to comment on the whole Postmodern in Law, or Law and Economics, thing.
The basic law, I believe to be revealed; whether in our hearts as Romans 1 says, or explicitly as described in the first five books of the Bible – the fact that other religions and philosophies have a similar, though not identical ethic argues for the Romans 1 point of view. At the same time, it is a fact that many of the rules and laws that are actually in fact enacted are to the advantage of the dominating class; the ‘politically rich,’ which usually has a strong overlap with the financially rich but is not quite identical to them. We have mentioned in a previous post that Francis Fukuyama has declared that patrimonialism, rule by an elite for the benefit of themselves and their relatives and friends, is, apart from eternal vigilance and God’s grace, the default mode of human government. In New Testament times the Roman Empire did some oppressive things but at the same time created order and some sense of the rule of law, especially for the minority that were ‘citizens.’ Paul, in fact, stands on what we would call his ‘constitutional’ rights on at least two occasions recorded in Acts.
In Romans 13, he reaches the conclusion that we are indeed obligated to obey even patrimonial law when it does not command us to sin; the Christian formula has tended to be, through history, “Obey God rather than men, and men rather than self-will.”
Postmodernists would attempt to tell us that all law without exception is or must be patrimonial, to use Fukuyama’s word. But if they try to deny any transcendent or higher law, they cut the ground out from under themselves. If there is no transcendent ethic higher than ‘society’ or human law, on what ground do we say that there is anything wrong with oppression, racism and the like? If there is something wrong with these things, something that stands over legal systems and societies, there is a standard higher than society, one to which we are accountable. We would do well to start our reasoning from that point.