LAWIN MODERN SOCIETY LAWIN MODERN SOCIETY Toward a Criticism of Social Theory Roberto Mangabeira Unger l�I THE FREE PRESS New York lffil THE FREE PRESS 1230 Avenueof theAmericas New York, NY 10020 Copyright© 1976 by RobertoMangabeira Unger All rights reserved, including theright of reproduction in whole or in partin anyform. THE FREEPRESS and colophon are trademarks of Simon & Schuster Inc. First Free Press Paperback Edition 1977 Manufacturedin the United Statesof America Paperbound printing number 10 Unger,Library ofRoberto Congress Mangabeira. Cataloging in Publication Data Law in modern society. Includes bibliographical references and index. 1. Sociological jurisprudence. I. Title. Law 34o.1'15 74-27853 ISBN 0-02-932880-2 pbk. NOTE This study builds upon my Knowledge and Politics (Free Press, 1975). To make the present work intelligibleto readers unfamiliar with Knowledge and Politics, it wa,; necessary in some cases to restate ideas developed in the earlier book. CONTENTS CHAPTER1. The Predicament of Social Theory 1 The "burden of the past" in social theory 1 Social theory and political philosophy 3 The unity and crisis of social theory 6 The problem of method 8 The problem of social order 23 The problem of modernity 37 Human nature and history 40 Law 43 CHAPTER2. Law and the Forms of Society 47 The problem 47 Three concepts of law 48 The emergence of bureaucratic law 58 The separation of state and society 58 The disintegration of community 61 The division of labor and social hierarchy 63 The tension within bureaucratic law 64 The emergence of a legal order 66 Group pluralism 66 Natural law 76 Liberal society and higher law 83 VII viii I Contents The Chinese case: a comparative analysis 86 The hypothesis 86 Custom and "feudalism" in early China 88 The transformation period: from custom to bureaucratic law 96 Confucianists and Legalises 105 Limits of the Chinese comparison: the experience of other civilizations 110 The sacred laws of ancient India, Islam, and Israel 110 The Graeco-Roman variant 120 Law as a response to the decline of order 127 CHAPTER 3. Law and Modernity 134 The perspective of modernization 134 The comparison of societies: a preliminary framework 13 7 Elements 137 Tribal society 140 Liberal society 143 Aristocratic society 147 Social change 15 3 Law and European aristocratic society 155 Between feudalism and liberalism 15 5 Law in the Sta"ndestaat 158 Liberal society and its law 166 Consensus 166 Hierarchy 170 Law and the state I 7 6 Law, bureaucracy, and liberalism: a German example 181 The disintegration of the rule of law in postliberal society 192 Contents I ix Posdiberal society 192 The welfare state and the decline of the rule �� 1� The corporate state and the attack on public and positive law 200 Formality, equity, and solidarity 203 The retreat from legality: the German story continued 216 Beyond liberal society 220 The varieties of modernity 223 Comparing modern societies 223 Traditionalistic society 224 Revolutionary socialist society 2 31 The unity of modernism 234 Law beyond modern society: two possibilities 238 CHAPTER 4. The Predicament of Social Theory Revisited 243 Revisiting social theory 243 The problem of method 245 The problem of social order 262 The problem of modernity 265 Social theory, metaphysics, and politics 266 Notes 269 Index 297 1 THE PREDICAMENT OF SOCIAL THEORY THE "BURDEN OF THE PAST" IN SOCIAL THEORY1 It is a commonplace that great men impose a burden upon those who come after them. When there has been remarkable achievement in politics, art, or thought, the generation that followsin its wake, and benefits fromit, may suffer the paralyzing sense that nothing really important remains to be done. It may feel that the most brilliant oppor­ tunities have already been explored and turned to advantage. As a result, the successors seem faced with a dilemma: either they become mere caretakers of the monuments the great have left them, or, desirous of independence, but despairing of excellence, they drastically narrow their ambitions and set out to till, with technical proficiency, a small field. In the history of speculative thought, this dilemma assumes a characteristic form. On one hand, the epigones 1 2 / LAW IN MODERN SOCIETY may become exegetes of the classical texts even while they are guilt ridden by the loss of their autonomy. On the other hand, they may pretend that the preceding era belongs to some obscure prehistory of their science, in which it was still possible to work unhampered by distinctions among disci­ plines. They embrace specialization as an alternative that protects them from comparison with their forerunners at the cost of condemning them to a sort of permanent intellectual minority. Both these responses to the problem of following an age of extraordinary accomplishments are failuresof the mind and of the heart. They represent refusals to look straight into the face of greatness and to imitate, boldly and honestly, what one admires. Such cowardice exacts a high price, for it leads scholars to a secret disrespect of self, masked by a defensive skepticism about general speculation. In this situation, the only way people have to affirm their own identities is to quibble with details in their masters' work-to seek the glory of the Crab, which figures in the Zodiac because it bit the heel of Hercules. 2 There are circumstances in which these attitudes may be harder or easier to avoid. Once a long period of time has passed since the age of greatness, it becomes simpler to stand on one's own feet. The thinkers under whose shadow one lives may be defined as classics. This act of defining the masterpieces of most immediate concern to one as classics may have a curiously liberating effect. For it means that one is already able to acknowledge and to emulate a past generation of theorists while retaining a sense of the uniqueness of his own situation and of the dignity of the tasks that remain to be carried out. Thus, he need no longer fear to confess that the unresolved problems in their work are his own problems, and he is free to enter into a partnership with them. Everything that has been said in the preceding para­ graphs about the relationship between greatness and posterity The Predicamentof Social Theory I 3 applies to our attitude toward the men who, in the latter half of the nineteenth century and in the first decades of the twentieth, created what has come to be known as social theory. One thinks especially of Marx, Durkheim, and Weber. Much of social thought since their time has been divided betweencommentary on theirdoctrines or specializa­ tion within the traditions they established. The further away these specialized fields move from the original ambitions of the founders, and the more they pretend to scientific inde­ pendence, the less enlightening they seem to become. Yet, from many sides, it appears increasingly true that we can begin to see Marx, Durkheim, and Weber as classics, and to view what they produced as a classical social theory in contrast to the long tradition of political philosophy that preceded it. SOCIAL THEORY AND POLITICAL PHILOSOPHY Social theory is the study of society whose characteristic features began to appear in the writings of Montesquieu, his contemporaries, and successors and which reached a sort of culmination in the works of Marx, Durkheim, and Weber. It first established its identity by contrast to the political thought of the ancients and the Schoolmen. Two features chiefly distinguish it from the earlier tradition: one has to do with its conception of its own aim and method; the other with a view of the relation between human nature and history. Both aspects are familiar enough, but their implications for the central issues of social thought remain misunderstood. The political philosophy of the ancients was at once descriptive and prescriptive. This means much more than that it was interested in determining how society ought co be organized or that it cried co put its views of the individual and of society to practical use, for both things may be said of much 4 / LAW IN MODERN SOCIETY modern social theory. It signifies that the method employed by the traditional theory was one to which the distinction between fact and value, description and evaluation, was largely, though not wholly, alien. One who understood what individuals in society really were would also apprehend what they ought to be. At the heart of this doctrine lay a view of the relation between purpose and being and a corresponding vision of the laws that govern both nature and society. Every being strives to accom­ plish its inherent purpose or good, which is the more perfect realization of its own nature. In so doing, it also serves God's plan. Man's consciousness consists of the factthat he does not instinctively know his aim; he must discover it by thought. Consequently, he has the power to deviate from it. The striving for fulfillment of purpose imparts to all phenomena a certain regularity that is perceived as obedience to law. Such laws, determinative of the good and established by God, show us both what things are like and what they ought to become. In this tradition of thought, there is little or no place for distinctions between (a) descriptive or explana­ tory laws about the interrelations of natural or social phenom­ ena and (b) moral or political rules designed co determine how individuals should act. The contrasts of fact and value, of science and moral judgment, and thereforealso of law in the descriptive and the prescriptive sense are among the main themes in the tradition of social theory, as well as in the growth of the natural sciences.