Is Subjectivity Possible? The Post-Modern Subject in Legal Theory

36 Pages Posted: 12 Dec 2017

See all articles by James Boyle

James Boyle

Duke University School of Law

Date Written: January 1, 1991

Abstract

This article puts forward a thesis and then attempts to prove (or at least to develop) that thesis in two related areas. The thesis is that legal theory in general, and critical legal theory in particular, has concentrated too much on critiques of objectivity, wrongly assuming that "subjectivity" was an unproblematic term. Subjectivity, like mortality, has seemed not only attainable but inevitable. It is objectivity which is presumed to be the problematic goal of our theories and our attempts at doctrinal interpretation. This article reverses the focus, concentrating on the construction of subjectivity in law and social theory... Having pointed out that critical theories focus mainly on the impossibility of reaching "objectivity," I show that some of the same critiques can be turned on the construction of "subjectivity" as well. The parallelism is more than mere symmetry. Just as the concept of objectivity can be used to armour decisions or social practices, so theoretical results and ideological slant can be dictated by loading up the abstract "subject" of a political or economic theory with a particular set of drives, motivations, and ways of reasoning...I then turn to the legal "subject" around whom the law revolves and try to develop a sketchy history of the changing qualities which that subject has been believed to possess. I conclude that the ideas associated with postmodernism are a useful framework for understanding the subject in legal theory and in legal practice. In fact, bizarre as it may seem, the law already incorporates a more postmodern view of the subject than either economics or mainstream political theory.

Suggested Citation

Boyle, James, Is Subjectivity Possible? The Post-Modern Subject in Legal Theory (January 1, 1991). University of Colorado Law Review, Vol. 62, No. 3, 1991, Available at SSRN: https://ssrn.com/abstract=3084918

James Boyle (Contact Author)

Duke University School of Law ( email )

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