should be mentioned for present purposes, reviewing the Law Commission for the
Government in 2000.
Post-modernism and law reform
15
These experiences have convinced me that law and properly structured legal
institutions are important. I have the old-fashioned belief that things can be
improved by good law-making; legislation is not everything, but it is something.
As Justice Kirby put it in the article quoted earlier, Law Reform is part of the
stable machinery of modernity.11 I have spent now 40 years in the law, much of
it in reform activities. I am beginning to feel there is a sense of unfulfilled
expectations about law reform and the legal climate generally. It is to the
philosophical cause of that unease I now turn. Legislative reform truly does
represent modernity, but we seem to be living in a post-modern age.
16
There seems to be an infection seeping into the legal system in the Western world.
It is the infection of post-modernism.12 It has implications for law reform. It
constitutes a serious challenge to law reform. Post-modernism is marked by the
break up of the nation state and the weakening of normative social institutions,
particularly the law. It is marked by scepticism concerning the foundations of
knowledge. It advances the view that language constructs reality, but does not
mirror it. Post-modernism points out the insoluble difficulties in postulating
coherent unitary texts or sets of legal principles.
11
Kirby Are we there Yet? in Opeskin and Weisbrot above n 5, 445.
12
I am not an authority on post-modernism, but I seek to set out here what I take to be its
chief messages. Some useful works are: Thomas Bridges The Culture of Citizenship:
Inventing Postmodern Civic Culture (State University of New York Press, Albany, 1991);
Babette Babich (ed) Continental and Postmodern Perspectives in the Philosophy of
Sciences (Ipswich Book Co Ltd, Ipswich, 1995); Michel Foucault The Order of Things
(Pantheon Books, New York, 1970); Raymond Geuss The Idea of Critical Theory:
Habermas and the Frankfurt School (Cambridge University Press, Cambridge, 1981; Garay
Minda Postmodern Legal Movements: Law and Jurisprudence at Centurys End (New
York University Press; New York; 1995); Richard Posner Overcoming Law (Harvard
University Press, Cambridge, 1995); Dennis Paterson Postmodernism, Feminism and
Law (1992) 77 Cornell L Rev 254; Postmodernism and Law: A Symposium (1991) 62
U Colo L Rev; and JM Balkin What is a Postmodern Constitutionalism? (1992) 90 Mich
L Rev 1966.
7