DOCSLIB.ORG

Unger's Philosophy: a Critical Legal Study

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Unger's Philosophy: a Critical Legal Study 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.
Load more

Recommended publications
  • Shang Yang 商鞅 and Legalist 法家 Reform in the Ancient Chinese State of Qin 秦
    SHANG YANG 商鞅 AND LEGALIST 法家 REFORM IN THE ANCIENT CHINESE STATE OF QIN 秦 Daniel HAITAS Abstract Legalism has played a major role in the history of the Chinese legal and governmental tradition. One of the major exponents and formulators of this school of thought in ancient times was Shang Yang, an official in the state of Qin. Shang Yang oversaw a program of law reform in Qin in such areas as criminal law and the economic life of the country which aimed to strengthen the power of the state. This can be said to have had long term consequences for both Chinese and world history, in that the strengthening and reorganization of Qin along the lines of Legalist principles helped lead to its gaining preeminence amongst the other states vying for influence in the Warring States period, ultimately leading to the unification of China under the rule of the Qin dynasty. Keywords: Shang Yang, Legalism, law reform, Qin state, criminal law, economic regulation. that would be known among the general population, which included a system of strict punishments to be 1. Introduction applied equally to all. Additionally, he implemented Throughout much of the history of the Chinese reforms that favoured agriculture at the expense of legal and governmental tradition, two different schools commerce. of thought have been portrayed as competing and This study particularly draws on the Book of Lord coexisting at the same time; these are the Legalists 法 Shang 商君書, the earliest surviving and foundational 1 家 and the Confucians 儒家 . Both sought to maintain text of the Legalist school whose authorship is 7 social order, yet differed in the primary methods attributed to Shang Yang .
    [Show full text]
  • Roscoe Pound-The Judge
    January, x942 ROSCOE POUND-THE JUDGE HAROLD GILL REUSCHLEIN t "Experience made him sage" -John Gay' To Roscoe Pound was given an invaluable experience rarely granted to a legal philosopher and teacher, 2 the experience afforded by a position upon a judicial tribunal of high rank. In April i9oi the Supreme Court of the State of Nebraska, then consisting of a chief jus- tice and two judges,3 found itself confronted with a docket hopelessly in arrears. The legislature, coming to the aid of the court, created the Nebraska Supreme Court Commission.4 Nine commissioners were appointed by unanimous vote of the supreme court to prepare and submit opinions in over fifteen hundred cases which had accumulated in the court. The commissioners were organized into three "depart- ments" each consisting of three members, one of whom served as chairman of his department. Appointed as one of the original commissioners, Roscoe Pound, was assigned to the "Second Department".5 During Pound's tenure as a commissioner, the members of the supreme court itself wrote almost no opinions. As the (locket was called, the cases were assigned equally to the departments and the chairman of each department re- assigned these cases to its members. There followed the usual hearing, t A. B., 1927, University of Iowa; LL. B., 1933, Yale University; J. S. D., 1934, Cornell University; Professor of Law, Georgetown University; author of Aludminum and Monopoly: A Phase of an Uisolved Problem (1939) 87 U. OF PA. L. REV. 509; Municipal Debt Readjustment: Present Relief and Future Policy (1938) 23 CORN.
    [Show full text]
  • State Courts and Federalism in the 1980'S: Comment
    William & Mary Law Review Volume 22 (1980-1981) Issue 4 National Center for State Courts Marshall-Wythe School of Law Symposium on Article 9 "State Courts and Federalism in the 1980's" May 1981 State Courts and Federalism in the 1980's: Comment Ruggero J. Aldisert Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Jurisdiction Commons Repository Citation Ruggero J. Aldisert, State Courts and Federalism in the 1980's: Comment, 22 Wm. & Mary L. Rev. 821 (1981), https://scholarship.law.wm.edu/wmlr/vol22/iss4/9 Copyright c 1981 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr STATE COURTS AND FEDERALISM IN THE 1980's: COMMENT RUGGERO J. ALDISERT* Each of the four highly analytical, uniformly thoughtful and stimulating papers that are the subject of these comments deserves an exhaustive commentary. My role is not to respond in kind by setting forth an essay of my own, but to react informally to the intellectual feast so temptingly displayed in the preceding pages. My reaction is, of necessity, personal and unabashedly influenced by my experience, and, therefore, these contentions are intuitive rather than conclusive. Moreover, my reaction is probably atypical because it is colored (or shall I say jaundiced?) by twenty years in the state and federal judiciary and about a dozen years of intimate involvement in continuing education programs for state and fed- eral appellate judges. My experience prevents me from looking upon state and federal courts as inanimate institutions, or state and federal judges as faceless dancers in a bloodless ballet.
    [Show full text]
  • Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability
    Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability EDMUND URSIN* TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 538 II. SETTING THE STAGE: TORT AND CONSTITUTIONAL LAW AT THE TURN OF THE TWENTIETH CENTURY ............................................................................ 545 III. HOLMES AND THE PATH OF THE LAW ................................................................. 550 A. Holmes and the Need for Judicial Creativity in Common Law Subjects ............................................................................................ 550 B. The Path Not Followed ............................................................................ 554 IV. THE INDUSTRIAL ACCIDENT CRISIS, THE WORKERS’ COMPENSATION SOLUTION, AND A CONSTITUTIONAL CONFRONTATION ....................................... 558 A. The Industrial Accident Crisis and the Workers’ Compensation Solution ............................................................................ 558 * © 2013 Edmund Ursin. Professor of Law, University of San Diego School of Law. Thanks to Richard Posner for valuable comments on an earlier draft of this Article and to Roy Brooks and Kevin Cole for always helpful comments on previous articles upon which I expand in this Article. See Edmund Ursin, Clarifying the Normative Dimension of Legal Realism: The Example of Holmes’s The Path of the Law, 49 SAN DIEGO L. REV. 487 (2012) [hereinafter Ursin, Clarifying];
    [Show full text]
  • The Use of Philosophers by the Supreme Court Neomi Raot
    A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court Neomi Raot The Supreme Court's decisions in Vacco v Quill' and Wash- ington v Glucksberg2 held that a state can ban assisted suicide without violating the Due Process or Equal Protection Clauses of the Fourteenth Amendment. In these high profile cases, six phi- losophers filed an amicus brief ("Philosophers'Brief') that argued for the recognition of a constitutional right to die.3 Although the brief was written by six of the most prominent American philoso- phers-Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson-the Court made no mention of the brief in unanimously reaching the oppo- site conclusion.4 In light of the Court's recent failure to engage philosophical arguments, this Comment examines the conditions under which philosophy does and should affect judicial decision making. These questions are relevant in considering the proper role of the Court in controversial political questions and are central to a recent de- bate focusing on whether the law can still be considered an autonomous discipline that relies only on traditional legal sources. Scholars concerned with law and economics and critical legal studies have argued that the law is no longer autonomous, but rather that it does and should draw on many external sources in order to resolve legal disputes. Critics of this view have main- tained that legal reasoning is distinct from other disciplines, and that the law has and should maintain its own methods, conven- tions, and conclusions. This Comment follows the latter group of scholars, and ar- gues that the Court should, as it did in the right-to-die cases, stay clear of philosophy and base its decisions on history, precedent, and a recognition of the limits of judicial authority.
    [Show full text]
  • Ross and Olivecrona on Rights
    Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2009 Ross and Olivecrona on Rights Brian H. Bix University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Brian H. Bix, Ross and Olivecrona on Rights, 34 AUSTL. J. LEG. PHIL. 103 (2009), available at https://scholarship.law.umn.edu/faculty_articles/211. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Ross and Olivecrona on Rights BRIAN H. BIX1 Introduction The Scandinavian legal realists, critically-inclined theorists from Denmark, Norway, and Sweden, who wrote in the early and middle decades of the 20t century,2 are not as widely read as they once were in Britain, and they seemed never to have received much attention in the United States. This is unfortunate, as the work of those theorists, at their best, is as sharp in its criticisms and as sophisticated philosophically as anything written by the better known (at least better known in Britain and the United States) American legal realists, who were writing at roughly the same time. The focus of the present article, Alf Ross and Karl Olivecrona, were arguably the most accessible of the Scandinavian legal realists, with their clear prose, straight- forward style of argumentation, and the availability of a number of works in English.
    [Show full text]
  • Rules of Law, Laws of Science
    Rules of Law, Laws of Science Wai Chee Dimock* My Essay is a response to legal realism,' to its well-known arguments against "rules of law." Legal realism, seeing itself as an empirical practice, was not convinced that there could be any set of rules, formalized on the grounds of logic, that would have a clear determinative power on the course of legal action or, more narrowly, on the outcome of litigated cases. The decisions made inside the courtroom-the mental processes of judges and juries-are supposedly guided by rules. Realists argued that they are actually guided by a combination of factors, some social and some idiosyncratic, harnessed to no set protocol. They are not subject to the generalizability and predictability that legal rules presuppose. That very presupposition, realists said, creates a gap, a vexing lack of correspondence, between the language of the law and the world it purports to describe. As a formal system, law operates as a propositional universe made up of highly technical terms--estoppel, surety, laches, due process, and others-accompanied by a set of rules governing their operation. Law is essentially definitional in this sense: It comes into being through the specialized meanings of words. The logical relations between these specialized meanings give it an internal order, a way to classify cases into actionable categories. These categories, because they are definitionally derived, are answerable only to their internal logic, not to the specific features of actual disputes. They capture those specific features only imperfectly, sometimes not at all. They are integral and unassailable, but hollowly so.
    [Show full text]
  • On Progressive Alternative: Unger Versus Žižek
    Original Paper UDC 165.741:141.82Unger, R.M., Žižek, S. 177:32 Received January 13th, 2010 Lenart Škof University of Primorska, Faculty of Humanities in Koper, Department of Philosophy, Titov trg 5, SI–6000 Koper [email protected] On Progressive Alternative: Unger versus Žižek Abstract In the paper we discuss the question of the future of democracy within some current projects of the emancipatory politics. We first critically approach Žižek’s and Badiou’s well-known revitalization of the idea of communism and link their projects to the burning issues of inequalities in the world system. Following this approach we elaborate on R.M. Unger’s recent book The Self Awakened and both defend his version of radicalized pragmatism and enlarge some of his uses of pragmatism (divinization, awakening of the self) to wider politico-ethical contexts. Key words pragmatism, democracy, emancipatory politics, Slavoj Žižek, Alain Badiou, Roberto Man- gabeira Unger I In his recent book The Self Awakened, Roberto Mangabeira Unger presents the reader with the credo of his radicalized pragmatism as a program of social reconstruction. He writes: “A radicalized pragmatism is the operational ideology of the shortening of the distance between context-preserving and context-transforming activities. It is thus a program of permanent revo- lution – however, a program so conceived that the word ‘revolution’ is robbed of all romantic otherworldliness and reconciled to the everydayness of life as it is.”1 For the pragmatist Unger, “the shortening of the distance” is a mark of practi- cal progress as needed in times of economic and social instability.
    [Show full text]
  • Repointing the Constitution
    Final Version (for publication) Repointing the Constitution By Janice Rogers Brown United States Circuit Judge United States Court of Appeals for the District of Columbia Circuit Joseph Story Lecture The Heritage Foundation Wednesday, October 22, 2014 5:30 PM The Heritage Foundation 214 Massachusetts Ave., NE Washington, D.C. 20002 First, I want to thank The Heritage Foundation for asking me to deliver this year’s Joseph Story Lecture. I am honored and intimidated to be in such august company. I especially want to express my gratitude to Ed Meese for his friendship, for his many kindnesses, and for being such a mensch. For those of you who do not speak Yiddish, it means a man of integrity and honor. But for General Meese’s courage and integrity, conversations like this one would be pointless. We are all indebted beyond anything we could repay because he took seriously his oath to support and defend the Constitution. This is where I usually offer my caveats: I am not a scholar, or a philosopher, and certainly not a theologian. Today I speak only as a conservative – one who has the good fortune to be particularly ill-educated. Having escaped an Ivy League Education, I now find myself free to think however I like. As a conservative, I spend my time thinking about the present evils of the world, unlike my liberal counterparts who spend their time thinking up new ones. These days I find myself, like Gladys Knight, thinking “I’ve really got to use my imagination; to think up good reasons to keep on keeping on.” I developed a new appreciation for Mr.
    [Show full text]
  • Unger, Berle, and the Derivatives Revolution
    The Peter A. Allard School of Law Allard Research Commons Faculty Publications Allard Faculty Publications 2010 Power Without Property, Still: Unger, Berle, and the Derivatives Revolution Cristie Ford Allard School of Law at the University of British Columbia, [email protected] Carol Liao Allard School of Law at the University of British Columbia, [email protected] Follow this and additional works at: https://commons.allard.ubc.ca/fac_pubs Part of the Business Organizations Law Commons, and the Property Law and Real Estate Commons Citation Details Cristie Ford & Carol Liao, "Power Without Property, Still: Unger, Berle, and the Derivatives Revolution" (2010) 33:4 Seattle U L Rev 889. This Article is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Allard Research Commons. Power Without Property, Still: Unger, Berle, and the Derivatives Revolution Cristie Ford† and Carol Liao†† INTRODUCTION We are in a time when the notion of property is in flux.1 The deriv- atives revolution2 has shattered the “atom of property” well beyond what was originally imagined in 1932 by Adolf Berle and Gardiner Means.3 This disaggregation has had fascinating, and often adverse, effects on corporate law and securities regulation. Moreover, the phenomenon has had the unexpected effect of permitting some parties that already possess considerable social, economic, and political power to accumulate even more. Innovations in modern finance have generated a large-scale expe- riment, running live and on a global basis, on the impacts of disassem- bling classical notions of ownership and property rights.
    [Show full text]
  • A Critical Review of Unger's Politics
    Schulich School of Law, Dalhousie University Schulich Law Scholars Articles, Book Chapters, & Blogs Faculty Scholarship 1990 On the Road to Radical Reform: A Critical Review of Unger's Politics Richard F. Devlin FRSC Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/scholarly_works Part of the Public Law and Legal Theory Commons ON THE ROAD TO RADICAL REFORM:1 A CRITICAL REVIEW OF UNGER'S POLITICS0 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.
    [Show full text]
  • Lawin Modern Society Lawin Modern Society
    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.
    [Show full text]