ABSTRACT
Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular culture. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues, however, that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. Whilst varying wildly, classical accounts of legal truth, it is argued, tend to share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. Such accounts share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal, normative or constitutional ‘pluralism’. This post-modern turn within law has also produced, therefore, what we might call a form of post-truth within law. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued that, in the legal context at least, legal post-truth allows for the transcendence of the empirical/ideal divide and the emergence of deeper forms of legal truths and our ability to account for them through theory.
