Jude Chua (National Institute of Education, Singapore) has posted From Differend to Indifference: The Totalitarian in Post-Modern Jurisprudence on SSRN. Here is the abstract:
In this essay, I discuss the proposal that jurisprudence should go postmodern and examine the Lyotardian motives behind such a proposal. I argue that as an effort to diffuse what Lyotard calls differend, the postmodern jurists’ project is well intentioned, but ultimately self-defeating. Developing my criticisms from the point of view of a natural law legal theorist, I will try to show how post-modern jurisprudence paradoxically breeds terror and differend.
And from the text:
But in what follows I wish to launch a general attack on this post-modern political programme, and then narrow down my criticism to postmodern jurisprudence. My sympathies for post-modernism exist: I agree that it is a powerful tool for undermining any dominant discourse system which perpetuates the wrong of differend. For argument’s sake I shall grant that we have a responsibility to resist such a dominant discourse. But I am worried that like a double edged sword, this programme, being so radical, will at once undermine dominant discourses which are the only justificatory grounds of instruments and advocacies of justice. That is, as much as it undermines discourses which perpetuate the wrong and injustice of differend, it also undermines discourses which truly serve the aims of justice in both politics and within jurisprudence. The post-modern programme entails corollaries or unintended side-effects which make reasonable claims of justice impossible. To make my case I will restrict myself to discussing post-modernism’s effect on natural law theory as an example.
At the very general level, a post-modern stance, especially when planted in political theory, undermines any ethical or moral criticism of very evil regimes. It does this just as it rejects all grand narratives. And of those grand narratives it rejects in its sweep are some which ground the authority of the principles with which one condemns evil regimes.
If you are unfamiliar with the Lyotardian strain of post-modern thought, this gives a nice introduction in the context of legal theory.