Look Back in Unger: A Retrospective Appraisal of Law in Modern Society
| Published date | 01 September 1986 |
| Author | Neil T. Duxbury |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01709.x |
| Date | 01 September 1986 |
REVIEW ARTICLE
LOOK BACK IN UNGER: A RETROSPECTIVE APPRAISAL
OF
LAW IN MODERN SOCIETY
LAW
IN
MODERN SOCIETY: TOWARD A CRITICISM
OF
SOCIAL THEORY.
By
ROBERTO MANGABEIRA UNGER.
[New
York:
Free
Press.
1976. 309
pp.,
$10.95,
paperback.]
I
IT
is
now
11
years since Roberto Unger’s first book was published.’
During this time, his output has spanned the domains
of
law, psychiatry,
social theory, and politics. In the writings
of
many legal theorists, Unger’s
work (normally referred to with approval, but occasionally meeting
bewildered dismissal*) more often than not receives nothing more
prodigious than a comment
en
passant.
Frequently cited, but seldom
discussed, his first two books suffer from a remarkably diaphanous
popularity, exacerbated somewhat by the fact that British and American
legal scholars appear to disagree as to which
of
these is the most
imp~rtant.~ Furthermore, to this writer’s knowledge, only one extensive
study
of
his work has
so
far been ~ndertaken.~
Unger’s first book is a precocious affair,5 advancing the thesis that the
classic social theories
of
Man, Durkheim, and Weber were shaped by
their reliance upon a particular conception
of
the liberal state and the
peculiar set
of
questions that this entailed. Since society has now advanced
beyond this liberal tradition, Unger argues, the substance and methods
of
social study need to be transformed accordingly.6 This thesis is expressed
with a greater degree
of
confidence and refinement in
Law
in Modern
Sociew
where, under the rubric
of
“The Predicament
of
Social Theory”
(Chap.
l),
Unger advances his arguments supporting the need to develop
beyond the ever-prevalent commentary upon and specialisation within the
traditions established by the Marx-Durkheim-Weber triptych. Considering
social theory to be “engaged in a quest for an understanding
of
the
different forms that people’s awareness
of
each other,
of
nature, and
of
themselves assume in each kind of social life” (pS), Unger makes a
’
Roberto M. Unger,
Knowledge and Politics
(1975). In this article, all page references
are to
Law in Modern Society.
*
As,
e.g.
in the review
of
Law in Modern Society
by Richards (1976)
44
Fordham Law
Review
873 at 874 where it is suggested that Unger’s “theoretical abstraction” has the
virtue
of
allowing him “to indulge his preference for a style
of
portentuous grandeur and
prophetic apostrophe; its vice, however, is the deepest criticism
of
any theory, emptiness.”
American scholars favour citing
Knowledge and Politics,
whilst British scholars refer
more or less exclusively to
Law in Modern Society,
which was intended as a thematic
development
of
its precursor.
Allan C. Hutchinson and Patrick
J.
Monahan, “The Divine Comedy
of
Roberto
Mangabeira Unger” (unpublished manuscript, September 1983) 127 pp. This manuscript
has been published in a significantly revised form as “The ‘Rights’ Stuff Roberto Unger
and Beyond” (1984) 62
Texas
Law Review
1477-1539.
Hutchinson and Monahan, in “The Divine Comedy,”
supra,
note 4, remark that in
his first book, Unger’s “proposed ideal of human nature was devoid of any content.
Unger merely prophesised that essential human nature would be revealed through a
spiral
of
shared values and community” (p.12). Indeed, Unger actually concludes
Knowledge and Politics
with a plea to God
(supra,
note 1, p.295).
658
Knowledge and Politics, supra,
note
1,
pp.174-175.
SEPT.
19861
REVIEW
ARTICLE
659
formidably erudite and eclectic bid to outstrip what he considers to be the
parameters established by his classical forebears. It is unfortunate,
however, that, despite the title
of
the book and the theme
of
modernity to
which it ultimately addresses itself, Unger’s endeavour to move beyond
the traditions
of
his theoretical precursors is for the most part grounded in
a distinctly dubious brand
of
historiography. Having undertaken no
historical research
of
his own, Unger presents a series
of
observations on
certain non-contemporary societies which, as exercises in textbook history
gleaned entirely from the writings
of
others (with a special debt being
owed to Max Weber), provide nothing more than yet another layer of
exegesis laminated on to historical interpretations which are already at
least twice removed from the original social realities.
For
Unger, the deepest root
of
all historical change “is manifest
or
latent conflict between the view
of
the ideal and the experience
of
actuality” (p.153). This notion
of
conflict between the ideal and the actual
is presented as the thematic, unifying factor linking the various types of
society which he examines. The obvious generality
of
this theme, however,
leads Unger to present his observations in terms of an abstract historical
continuity which, though offered in a socio-theoretical context, results in a
neglect
of
the more specific levels of analysis emphasising discontinuity
and difference which historians consider
to
be indispensible to their
discipline.’
Unger not only generalises. He does
so
in a distinctly Weberian fashion.*
Although claiming to reject Weber’s scheme of interpretive understanding,
based upon the formulation
of
pure ideal types corresponding to different
forms
of
social action, Unger’s analyses are similarly premised upon a
theoretical conception
of
“the type” (p.259). His reliance upon ideal-
typical reasoning becomes clear, for instance, when he contends that
“[llaw seems a peculiarly fruitful subject
of
inquiry, for the effort to
understand its significance takes
us
straight to the heart
of
each
of
the
major unsolved puzzles
of
social theory” (p.44). This idea
of
passage
through law to the major problems of social theory
is
one which Unger, to
his credit, proposes and supports with admirable consistency throughout
the book. The difficulty with his position, however, is that he simply
typecasts law as a phenomenon comprised
of
hypostatised, objective
relations which reflect not
so
much detailed empirical experience as the
models of society which are constructed to fit the contours
of
his
programme for social theory. Poulantzas comments that the problem with
the legal theories
of
Weber, Gurvitch and Ehrlich, amongst others, is that
“the legal types which they establish and adapt in correspondence with
tconomic
or
social types never successfully capture the specificity
of
the
legal ~niverse.”~ This criticism is equally applicable to Unger’s position.
Unger’s typecasting
of
law becomes particularly obvious in chapter two,
wherein he distinguishes three “major sorts of law” (p.47): customary-
interactional, bureaucratic, and law as legal order. Customary-interactional
’
On the notion
of
discontinuity in historical analysis, see Michel Foucault, The
Archeology of Knowledge (Eng. tr.
A.
M. Sheridan Smith, 1972), pp.8-9.
*
In his review
of
Law in Modern Society, (1977-1978) 12 Law and Society Review
145-149 at 147 note
1,
148 note 2, Talcott Parsons, Weber’s principal expositor in the
United States, remarked
on
the fact that not only does Unger fail to acknowledge in
footnotes
or
elsewhere the extent
of
his indebtedness to the writings of Weber, but
also
that not once in the book does he explicitly refer to Weber’s writings on law.
Nicos
Ar.
Poulantzas, Nature des choses et droit: Essai sur la dialectique du fait et de
la valeur (1965). p.252.
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