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Unger's Philosophy: a Critical Legal Study

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The Yale Law Journal Volume 97, Number 5, April 1988 Article Unger's Philosophy: A Critical Legal Study William Ewald t Of all the scholars associated with the CriticalLegal Studies movement, none has garnered greater attention or higher praise than Roberto Unger of Harvard Law School. In this Article, William Ewald argues that Professor Unger's reputation as a brilliantphilosopher of law is undeserved. Despite the seeming erudition of his books, Professor Unger's work displays little fa- miliarity with the basic philosophical literature, and the philosophical, legal, and political analysis in those works-in particular,the celebrated critique of liberalism in Knowledge and Politics-is so riddled with logical and histori- cal errors as to be unworthy of serious scholarly attention. t Junior Research Fellow, The Queen's College, Oxford. I should like to thank Robert Alexy, Delf Buchwald, Robert Clark, Jonathan Cohen, Ralf Dreier, Ronald Dworkin, Charles Fried, Geof- frey Hazard, Susan Hurley, Geoffrey Marshall, Brian McGuinness, Derek Parfit, Guinther Patzig, Hilary Putnam, W.V. Quine, Eric Rakowski, John Rawls, Joseph Raz, Paul Seabright, Thomasz Studnicki, and Robert Summers for their encouragement and suggestions. Much of the writing was done at the University of G6ttingen under the auspices of the Alexander von Humboldt Stiftung; I am grateful to both institutions for their generous support. The Yale Law Journal [Vol. 97: 665 I. INTRODUCTION In his first book, Professor Roberto Mangabeira Unger of Harvard Law School announced that he had discovered "the context of ideas and sentiments within which philosophy and politics must now be practiced."' Since that time, he has become a prominent thinker in Critical Legal Studies (CLS), a movement that, in his own words, "has undermined the central ideas of modern legal thought and put another conception of law in their place." 2 If anyone in CLS can claim to have undermined the central ideas of modern legal thought, that person is Professor Unger. There is wide- spread agreement that he is the philosophical leader of CLS and that his most influential work is the critique of liberalism in his first book, Knowl- edge and Politics.' His books on political and legal theory4 range over the whole of the Western philosophical tradition. They cite authors from Aristotle to Quine, from Hobbes to Hegel to Emil Lask. They bristle with footnotes to works in German, French, Latin, Italian, Greek, and Dutch. They 1. R. UNGER. KNOWLEDGE AND POLITICS V (1975) [hereinafter KP]. 2. Unger. The Critical Legal Studies Movement, 96 HARV. L. REV. 561. 561 (1983) [hereinafter CLS.M[. 3. This book has been called "the most extensive and influential critique of liberalism in recent memory." Levinson. Book Review. 96 HARV. L. REv. 1466. 1466 n.4 (1983). Opponents and propo- nents of CLS agree about Unger's importance and about the importance of KP to CLS. See, e.g., Ackerman. Foreword: Law in an Activist State, 92 YALE L.J. 1083. 1127 & n.78 (1983) (KP is "[tihe most significant theoretical work" of communitarian form of "deviationist legal doctrine"); Fiss. The Death of the Law?, 72 CORNELL L. REV. 1, 10 (1936) (Unger's work is "the true inspiration of the [CLS] movement"); Hunt, The Theory of CriticalLegal Studies, 6 OXFORD J. LEGAL STUD. 1, 6 & n.14 (1986) (Unger's value to CLS is in his "general theoretical critique of liberalism," and his "influence within [CLS] is primarily through his earlier text Knowledge and Politics"); Hutchinson & Monahan, Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199, 231 n.141 (1984) (Unger's CLSM "builds on his earlier work, Knowledge and Politics and Law in Modern Society"); see also infra note 234 and text accom- panying note 7); Schwartz, With Gun and Camera Through Darkest CLS Land, 36 STAN. L. REV. 413, 416 (1984) ("If Kennedy is the Pope of CLS, Unger is the Christ figure"); Stick, Can Nihilism be Pragmatic?, 100 HARV. L. REV. 332, 334 n.9 (1986) ("Roberto Unger's study of liberalism, Knowledge and Politics," is one of "[tlhe seminal legal texts that gave rise to legal nihilism"). Ob- serve that all of these quotations appeared after the publication of Unger's article on CLS-an article which had been widely disseminated before it appeared in print. 4. In addition to Knowledge and Politics, Unger has written Law in Modern Society (1976); Passion:An Essay on Personality (1984); and Politics,A Work in Constructive Social Theory (3 vols. 1987). CLSM, supra note 2, also appeared as a book, The CriticalLegal Studies Movement (1983); my page references will be to the article. In this article I shall discuss the two works that have had the most influence on CLS-i.e., KP and CLSM-and Unger's encyclopedic new project, Politics. Law in Modern Society is shorter than KP, heavily dependent on its theses, concerned with sociology rather than with philosophy, and less frequently cited in the CLS literature. Passion is largely superseded by Politics. Unger's "Note" at the beginning of Law in Modern Society remarks: "This study builds upon my Knowledge and Politics (Free Press, 1975). To make the present work intelligible to readers unfamiliar with Knowledge and Politics, it was necessary in some cases to restate ideas developed in the earlier work." Similarly, in one of the volumes of Politics Unger points out: "The argument of the fragment on cultural revolution stands in close relation to the main part of my book, Passion: An Essay on Personality." R. UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY. PART I OF POLITICS, A WORK IN CONSTRUCTIVE SOCIAL THEORY 630 (1987) [hereinafter FN]. Accordingly, I shall not discuss these two works. 1988] Unger's Philosophy purport to show that "no coherent theory of adjudication is possible within liberal political thought,"' and they embark on a "search for changes in social life that might serve as the basis, or as the inspiration, of a nonliberal doctrine of mind and society." 6 These books received a num- ber of favorable reviews. For example: Law in Modern Society is a truly profound book. It defies coherent summarization in a few hundred words. It contains more fundamen- tal insights into the human condition than any other book I have read by a living author. The sheer breadth of Unger's knowledge and the unrelenting force of his analysis can only be regarded with something approaching awe. One leaves this book with the feeling that a century from now scholars may still be poring over it, much as they now do with the works of Marx, Durkheim and Weber.' Unger has also been compared to Spinoza, Dante, and Virgil.' Unger's own claims have not been modest. He compares his fellow professors of law to "a priesthood that had lost their faith and kept their jobs"-until the gospel of CLS liberated the legal academy.9 More recently, Unger has published three volumes, forming the first part of Politics: A Work in Constructive Social Theory.10 In this work, too, Unger makes grand claims: He says he aims to provide a new theo- retical vision for the left-a radical alternative to both Marxism and so- cial democracy." Having noticed that radical social theory was "an in- stance of illusion passing into prejudice," he wanted to write a book "to set things straight."' 2 Again, his followers have been supportive. One con- tributor to the Northwestern University Law Review's Symposium on Politics, while noting that "neither Politics nor theory nor the human in- tellect can work the redemption of humanity," nevertheless holds that "Politics is a remarkable achievement. It warrants study, attention, and celebration. It contributes aid to the rescue of humanism from the failures of liberal democracy, Marxism, modernism, and Christendom."'" 5. KP, supra note 1, at 98. 6. Id. at 20. 7. Monahan, Book Review, 61 Soc. & Soc. RES. 431, 432 (1977). 8. See Boyle, Book Review, 98 HARv. L. REV. 1066, 1079 (1985) ("the Spinozian latticework of epistemological argument that characterizes Unger's earlier works"); Hutchinson & Monahan, The "Rights" Stuff. Roberto Unger and Beyond, 62 TEX. L. REV. 1477, 1491 (1984) (passage comparing Unger's work to Dante and Virgil quoted infra note 234). 9. This comment occurs in the conclusion to CLSM, supra note 2, at 675; the passage is quoted in full infra p. 756. 10. Individually entitled: (1) Social Theory: Its Situation and Task. A Critical Introduction to Politics, a Work in Constructive Social Theory (1987) [hereinafter ST]; (2) FN, supra note 4; and (3) Plasticity into Power: Comparative-HistoricalStudies on the Institutional Conditions of Eco- nomic and Military Success. Variationson Themes of Politics, a Work in Constructive Social Theory (1987) [hereinafter PP]. Unger also plans a Part II of Politics. See FN, supra note 4, at 630. 11. FN, supra note 4, at 1. 12. ST, supra note 10, at 79. 13. Ball, The City of Unger, 81 Nw. U.L. REv. 625, 627 (1987). This Symposium is to be The Yale Law Journal [Vol. 97: 665 I propose to examine the accuracy of all these claims-to see whether Unger's philosophy is as impressive as he and his admirers say. Unger's work falls into three areas: philosophy, law, and politics. I shall accordingly proceed in three stages. I begin by discussing the most philosophical of Unger's works, Knowledge and Politics, concentrating on the passages that are most relevant to CLS. In this Section, I shall try to gauge the quality of his scholarship, and to explain what I think is askew with his philosophy.
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