Article by Ugo Mattei and Anna di Robilant
This Article is a critique of several contemporary modes of thought in European legal scholarship. It intends to shed light on some interesting phenomena within legal ideology.
Removing a legal ideology from its original context and applying it to a new situation can transform its meaning. For example, a progressive movement born in the United States becomes conservative when transplanted into the European institutional context. The study of the Americanization of European law has offered many examples of such fascinating ideological twists.
Critical Legal Studies, born in the United States, has developed, at least in its second generation, an identity built around two fundamental pillars: progressive political views and postmodernism. The ultimate aim of this movement is to challenge and change the system from the left. On the contrary, postmodernism within the European legal context is politically quite conservative. It has refused all major attempts at legal change and consequently has protected the cultural status quo.
Structuralism characterizes both the self-portrait of Critical Legal Studies in the United States and a rather large portion of European comparative law scholars. However, postmodernism, as a condition of legal analysis, has only very recently been discovered in Europe. Moreover, in the European context, its political ambiguity becomes very clear. This Article discusses the political implications of the postmodern condition in the making of European law. It looks at contemporary movements in art and architecture to understand and gain perspective on the postmodern condition in European law. We believe that some of the trends that have developed in art and architecture theory, provoking the decline and demise of the modernist paradigm and the incremental development of a new, postmodern sensitivity, share important characteristics with current movements in law.
Seeking parallels between the law, art, and architecture makes sense given the typically postmodern inclination to receive and elaborate on stimuli from different kinds of cultural movements. It is also consistent with an approach to the law as part of a more complex normative system, such as that of Critical Legal Studies and of other postrealist schools of thought in the United States. If rationality and legitimacy of power are culturally contingent notions, changing in time and space within a Kuhnian model, the area of relevant legal knowledge widens to include zones such as literature, the arts, and philosophy, precluding to the law the possibility of finding autonomous, independent foundations. Consequently, we analyze the branches of European Legal Scholarship not only as scientific schools of thought, but also as artistic and architectural movements.
Because legal scholars are neither artists nor scientists, but actors in a political game, the political impact of the postmodern condition becomes more relevant in law than in other branches of knowledge. If this is the case, then it becomes fundamentally important to understand and characterize the contribution of postmodern European scholars in terms of right and left. What matters, of course, is not just what these scholars say (or do not say) but also, and very importantly, what impact their teaching has on the legal landscape of Europe.
Only in this broader scenario is it possible to evaluate the impact of American critical legal thinking in Europe, by assessing whether the political leftist message of struggle, critique, and, perhaps, sentimental utopia is actually maintained. This Article will show that, so far, the development of postmodern thinking in Europe has contributed to conservative rather than progressive agendas.
Part II sets the scene by introducing the interpretive categories and the dramatis personae of the story that we wish to tell. Part III approaches the different institutional backgrounds transforming the political impact on postmodern critical thinking in Europe. Part IV highlights the hidden conservative agenda behind the emphasis that some European legal scholars place on the division between common law and civil law. Part V discusses the contribution of American Critical Legal Studies in Europe as an injection of postmodern self-consciousness. Part VI discusses analogies between critical legal approaches and postmodern movements in art and architecture. Part VII approaches the issue of codification as a postmodern comparative legal project as opposed to an International Style endeavor.
About the Author
Ugo Mattei. Alfred and Hanna Fromm Professor of International and Comparative Law, University of California Hastings College of Law; Professor of Civil Law, University of Turin, Italy; Professor of Comparative Law, EUI, Florence, Italy. J.D. 1983, University of Turin; LL.M. 1989, University of California, Berkeley.
Anna di Robilant. Ph.D. Candidate in Comparative Law at the University of Trent, Italy; J.D. 1999, University of Turin.
Citation
75 Tul. L. Rev. 1053 (2001)