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A Critical Review of Unger's Politics Richard F Osgoode Hall Law Journal Article 5 Volume 28, Number 3 (Fall 1990) On the Road to Radical Reform: A Critical Review of Unger's Politics Richard F. Devlin Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Devlin, Richard F.. "On the Road to Radical Reform: A Critical Review of Unger's Politics." Osgoode Hall Law Journal 28.3 (1990) : 641-721. http://digitalcommons.osgoode.yorku.ca/ohlj/vol28/iss3/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. On the Road to Radical Reform: A Critical Review of Unger's Politics Abstract Two aims drive this essay. The first is to provide the reader with an accessible, yet relatively comprehensive, introduction to Roberto Mangabeira Unger's social and legal theory. The es cond aim is to evaluate the strengths and weaknesses of Unger's most recent scholarship and to make some suggestions as to where he goes awry. In particular, the author draws several parallels between the Ungerian enterprise and that of some feminists. The ec ntral motivation of the essay is to keep the critical conversation between male radicals and feminists open. To this end, the author posits the possibility of mutually beneficial contributions. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol28/iss3/5 ON THE ROAD TO RADICAL REFORM:' A CRITICAL REVIEW OF UNGER'S POLITICS° By RICHARD F. DEVLIN* Two aims drive this essay. The first is to provide the reader with an accessible, yet relatively comprehensive, introduction to Roberto Mangabeira Unger's social and legal theory. The second aim is to evaluate the strengths and weaknesses of Unger's most recent scholarship and to make some suggestions as to where he goes awry. In particular, the author draws several parallels between the Ungerian enterprise and that of some feminists. The central motivation of the essay is to keep the critical conversation between male radicals and feminists open. To this end, the author posits the possibility of mutually beneficial contributions. I. INTRODUCTION .......................... 643 II. A STATEMENT OF THE PROBLEM: A SNAPSHOT OF THE TWILIGHTENMENT .................... 644 A. The Paradox of Freedom Embedded in Domination . 644 B. Theses of the Enlightenment .................. 645 C. The Three "D's"............................ 646 Copyright, 1990, Richard F. Devlin. Associate Professor of Law, University of Calgary. Special thanks to Alexandra Dobrowolsky, Dianne Pothier, and Leon Trakman, each of whom provided helpful comments on an earlier draft of this paper. Shorter versions of this paper were presented at Dalhousie Law School, May 1988 and at the Feminism and Critical Theory Conference, Windsor, Ontario, June 1988. 1 See Soviet television nightly. B. Keller, "Local Control Brings Difficult Change for Soviets" The [Toronto] Globe & Mail (5 January 1988) B22. 642 OSGOODE HALL LAW JOURNAL [VOL. 28 NO. 3 III. POLITICS ................................ 647 A. Social Theory: Its Situation and its Task ......... 648 B. False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy ................ 655 1. Explanatory: determinism vs. formative contexts . 655 2. Programmatic: institutional reconstruction ..... 663 a) Empowered democracy ................ 664 b) Constitutionalreorganization - political ..... 666 c) Empowered democracy and the reorganization of the economy ..................... 670 d) Rights ............................ 675 i) M arket ......................... 676 ii) Immunity ....................... 677 iii) Destabilization ................... 678 iv) Solidarity ...................... 679 e) Deviationist legal doctrine .............. 681 f) Plasticity and Passion ................. 682 C. Plasticity into Power: Comparative-HistoricalStudies on the Institutional Conditions of Economic and Militay Success ....................... 684 IV. POINTS OF INTERSECTION BETWEEN UNGER AND FEMINISM ............................... 687 A. The Personal, the Political, and the Hierarchical .... 687 B. Contextualism. ........................... 688 C. Restoration of Agency ...................... 689 D. Rebellion against Linearity, Inevitability, and Laws . 690 E. The Rebellion Against Objectivity .............. 691 V. UNGERIAN CONTRIBUTIONS TO FEMINISM .... 692 A- Contours of the Feminist PoliticalAgenda ........ 692 B. Self and Community ... Solidarity and Care ....... 694 C. InstitutionalReconstruction .................. 700 1. Economic ............................ 701 a) Liquefaction of task-definition and task-execution ................... 701 2. Legal ............................... 702 1990] A CriticalReview of Unger's Politics a) Disaggregationof the consolidated property right ....................... 702 b) Equality of Circumstance ............... 703 3. Political ............................. 704 a) Liquefaction: feminism and constitutional reform ........................... 704 VI. FEMINIST CONTRIBUTIONS TO UNGER ........ 705 A. The Trashing Job ......................... 705 B. The Assumption of Conflict .................. 706 C. The Retreat fi-orn Solidarity .................. 708 D. Power and Plasticity ....................... 709 E. Plasticity is not Enough ..................... 714 F. Getting too Real. The Personal and the Political Revisited ......................... 718 VII. CONCLUSION ............................. 720 I. INTRODUCTION Two basic purposes underlie this review. The first is an attempt to provide an accessible, yet reasonably comprehensive, introduction to the social and legal theory of Roberto Mangabeira Unger, particularly as it is developed in his recently published three volume series Politics: A Work in Constructive Social Theory. The second purpose is to evaluate both the strengths and weaknesses of the Ungerian enterprise and, more particularly, to indicate where, in my opinion, he has gone wrong. In pursuing the latter, I will draw 2 upon the contributions of recent feminist social theory. 2 A caveat must be introduced at the outset. I am very conscious of the dangers involved in a process in which a man discusses feminism. What follows, I hope, is neither masculinist ventriloquism nor imperial scholarship. Richard Delgado describes the latter as white (or, in this case, male) analysis that is built upon "factual ignorance or naivete, ... failure of empathy, and inability to share values, desires and perspectives of the population whose rights are under consideration." See 'The Imperial Scholar. Reflections on a Review of Civil Rights Literature" (1984) 132 U. Pa. L. Rev. 561 at 568. In the light of these concerns, let me cautiously say that what is said in this paper is not said as a feminist because I am not OSGOODE HALL LAW JOURNAL [VCOL. 28 No. 3 To achieve these aims, the essay is divided into six subsections. In Part II, I will attempt to provide a political and philosophical backdrop for Unger's work in order to indicate the nature of the problem that he and others - feminists, for example - are attempting to come to terms with. This I call the Paradox of the Twilightenment. In Part III, I provide a self-contained overview of each of the three books that make up Politics. Part IV outlines some political and philosophical points of intersection between Unger and elements of the feminist enterprise and suggests the viability of a fruitful interchange. On this foundation, Part V provides several examples of the way in which critical theory t la Unger may be of some utility for feminist reconstruction. Part VI, on the other hand, identifies, from a feminist perspective, some of the very serious weaknesses of Unger's theory as developed in Politics and makes some suggestions as to how they might be remedied. The conclusion returns to a brief discussion of why it may be worthwhile facilitating an exchange between feminist and Ungerian social theory. II. A STATEMENT OF THE PROBLEM: A SNAPSHOT OF THE TWILIGHTENMENT A- The Paradoxof Freedom Embedded in Domination Our post-industrial, patriarchal condition disconcerts because it disempowers. Many of us are disempowered because our society has been unable to resolve the tension between freedom and equality on the one hand, and domination and subordination on the other, in a manner that allows all of us to fulfill our potentials as human beings. Put differently, a fundamental problem with contemporary society is that some people's freedom is the cause of sure if it is possible - or desirable - for a man to be feminist. Yet at the same time, I do believe that it is legitimate for men to enter into conversations with feminists, and that such conversations can be for their mutual benefit. For a further discussion of this issue, see "Nomos and Thanatos (Part A). The Killing Fields: Modern Law and Legal Theory" (1989) 12 Dal L.J. 297 and "Nomos and Thanatos (Part B). Feminism as Jurisgenerative Transformation or Resistance Through Partial Incorporation?" (1990) 13 Dal. LJ. (forthcoming) [hereinafter Nomos and Thanatos (PartB)]. 1990] A CriticalReview of Unger's Politics other people's subordination. This I call the Paradox of the Twilightenment. Those of us who inhabit the rich Euro-yanqui societies confront an existential paradox: when we compare our cultural situation with those of the Third World and of communist societies, it appears that in relation to the bench-marks
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