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Ireland's political and cultural magazine
38 July 2022
reproduced depending on the context of their
use. This approach underpins the judicial
doctrine of constitutions as “living instruments”
which allow you to recognise, or ignore, rights
like those to contraception, and — as with the
overturning of Roe v Wade — abortion.
• intertextuality that results from the reification
of text is central – tick
•
Or, as Derrida might put it, “il n’y a plus de
hors-texte” – coche
Even in the most relaxed social settings,
neither members of the law library nor
postmodernists have conversations – they
engage in discourse. Discourse as a substitute
for dialogue internalises complexity and
expresses abstraction by using deliberately
obtuse jargon and unnecessarily complex
theories. Both deploy these, not so much as
rhetorical techniques, but more as critical
devices exercised in the destruction of
arguments that inhibit the discovery or exchange
of facts. Moreover, the use of language that is
reshaped with multiple conceptual layers that
are not amenable to explanation by simple
language is a means of asserting an exclusive
domain of expertise. Lawyers have successfully
institutionalised their claim as gatekeepers of
knowledge in the “right of audience” which
prevents lay litigants representing others in
court proceedings.
• complexity and abstraction are embraced, to
privilege knowledge claims – tick
Barristers have centuries of experience in
passing o as reality a network of images and
signs without an external referent, that collapse
the distinction between what is represented and
the representation itself, in what Baudrillard
would recognise as “hyper-reality”.
If there is a distinction to be drawn between
barristers and postmodernists it is this obvious
anomaly: the former use tradition to manufacture
the simulacra of reality, while the latter rely on
technology and modern media to mediate
experience to reality.
Postmodernism became an intellectual dead-
end when it became impossible to deny that it
was a barren and self-referential cognitive
framework that only succeeded in disingenuously
establishing unnecessary problem fields.
Barristers struggle daily to avoid such a fate.
• contested knowledge claims are determined
by relative power relationships – tick
In court proceedings, claims of fact can only
be accepted as legitimate if they conform to the
legal rules of evidence. No matter how accurately
an asserted fact describes what actually
happened, no matter how true it is, if it is
inconsistent with the methods of adducing
evidence as specified by law it will be discarded.
A court may reject evidence obtained through an
illegal search or under a flawed warrant without
conceding that such evidence is untrue in a
substantive sense. This narrows the possibilities
of any existence capable of being considered in
court to those which conform to this limiting
methodology. Hume’s inversion of epistemology
over ontology — that only what can be perceived
can be thought of being capable of existing — is
further narrowed to esse est testificor.
• methodology is prioritised when determining
which contested knowledge claims are
accepted — tick
Law cannot be separated from text - indeed,
it can be said that law can only be found in text.
And the fundamental function of a lawyer is
precisely this reification of legal principles from
abstraction into text. The law is mainly
legislation and cases; texts include contracts,
deeds, confessions, adavits. In the law, as in
postmodernism, text is everything and, as a
consequence, barristers are predominantly
pre-occupied in textual production (their own
texts when drafting opinions) and reproduction
(the law).
What distinguishes the good barrister from
the ordinary (apart from the fees they charge) is
the capacity interpret and apply case law in the
settings of specific cases. The capacity to
reference and critically analyse parallel texts
long predates the emergence of postmodernism’s
hermeneutics and its preoccupation with
semiotic study. However, both fields share an
understanding that texts do not have a fixed
meaning but must be constantly defined and
A
lthough few who strut their trade
around Gandon’s halls or chilly
country courthouses in gowns, collar
bands, and — sometimes — horse-
hair wigs would acknowledge it,
theirs is a profession whose intellectual habits are
not ancient but quintessentially late-twentieth
century. Despite appearances, the barristers’
profession is undeniably postmodernist.
Courtroom advocacy is textbook
postmodernism which, as befits a critical and
philosophical movement that rejects fixed
meanings, eludes standard definition. However,
writers in this tradition can be identified by their
shared characteristics:
•
contested knowledge claims are determined by
relative power relationships;
• methodology is prioritised when determining
which contested knowledge claims are
accepted;
• intertextuality that results from the reification
of text is central; and
•
complexity and abstraction are embraced, to
privilege knowledge claims.
If you deconstruct the component performative
acts and utterances that constitute legal practice,
you can tick each characteristic of postmodernism
from this list.
In an adversarial legal system, opposing
counsel assert both dierent interpretations of the
law, and, contradictory facts, while simultaneously
seeking to delegitimise the assertions of
knowledge advanced by the opposing side. To
decide which of these conflicting knowledge
claims will be accepted, jurors make
determinations in matters of fact, and judges in
matters of law. A trial judge’s interpretation of the
law can be overturned by another judge holding a
superior position within the court hierarchy.
Contested claims of facts or knowledge are not
resolved by referencing an external objective or
verifiable ontological standard.
Contested clims of fcs or knowledge
re no resolved by referencing n exernl
objecive or verifible onologicl sndrd
By J Vivian Cooke
OPINION
Barristers as Postmodernists
They’re both twentieth-century not ancient, and
both offer a barren and self-referential cognitive
framework that only succeed in disingenuously
establishing unnecessary problem fields
