The Inertia of Institutional Imagination: A Reply to Roberto Unger
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02086.x |
| Author | Emilios A. Christodoulidis |
| Published date | 01 May 1996 |
| Date | 01 May 1996 |
The Inertia
of
Institutional Imagination:
A
Reply to Roberto Unger
Emilios
A.
Christodoulidis*
Introduction
Today,
as
ever, Roberto Unger challenges us to place our concept of the political at
risk. Much of his recent work renews his earlier call for an empowerment of
politics, involving our constant alertness to the possibilities of change, the
revisability of those possibilities and the removal of all that falsely presents itself
as unrevisable. This call for the empowerment of politics is not, of course, couched
in the vocabulary of republicanism,
as
so
much other recent legal theory
is.
But
neither is it an appeal to the smashing
of
all contexts, to the tireless resistance to
the institutional; no, Unger’s great novelty is that his politics are both radical and
institutional.
Nothing, says Unger, compels us to reduce the political to the exclusive
alternatives of ‘tinkering’ with the institutions
or
revolting against them. This
disjunction blinkers the very real possibility that the political may draw its
inspiration from the institutions’
-
significantly here law’s
-
own powerful
imagination. Unger’s work in legal and social theory is the constant endeavour to
do just that, to tap that imagination.
For
him law is not rigid and confining. In a
powerful statement of the ‘law-as-politics’ thesis, Unger vests in law the
possibility to pursue radical politics and counter the ‘false necessity’
of
the
confinement of our political vision within rigid institutional assumptions. This
argument has for some time now been expounded by the Critical Legal School that
seeks to upset the legal system’s tendency to assimilate the new to the old, its
overwhelming of the innovative, its tendency to rationalise the incongruent into
coherence. In his article in this journal,2 Unger names his opponent
as
the school of
‘rationalising legal analysis,’ where ‘rationalising’ means the alleged ‘improve-
ment’ that ‘happens by developing the underlying conceptions of principle and
policy and by
rejecting
bit by bit the pieces of received understanding and
principle that
fail
to
fit
the preferred conceptions of policy and principle.’3 Unger
*Lecturer in Jurisprudence, Centre for Law and Society, Faculty of Law, University of Edinburgh.
This article was written in reply to Roberto Unger’s Chorley lecture, ‘Legal Analysis
as
Institutional
Imagination,’ given at the London School of Economics on
31
May 1995, the revised version of it, ‘Legal
Analysis
as
Institutional Imagination’ (1996) 59 MLR
I,
and the informal seminar that followed the lecture
the next day. The author would like to thank Beverley Brown, David Garland, Sean Smith, Scott Veitch,
the participants in the Political Theory Seminar in Edinburgh and the anonymous expert readers of the
MLR for their helpful comments.
‘In this way we can break
a
little further from the tedious, degrading rhythm of history
-
with its long
lulls
of collective narcolepsy punctuated by violent revolutionary seizures’:
False Necessity: Anti-
Necessitarian Social Theory in the Service
of
Radical Democracy
(Cambridge: Cambridge University
Press, 1987) p
1.
Unger, ‘Legal Analysis
as
Institutional Imagination’ (1996) 59 MLR
1.
ibid
p9, emphasis added. Obviously, if not explicitly, Dworkin,
Law’s
Empire
(London: Fontana,
1986). In this context,
see
also
Bengoextea’s excellent ‘Legal System as
a
Regulative Ideal’ (1994)
ARSP BeiheB
53,
66-80,
for
a
different account of the ‘rationalising’ process.
1
2
3
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warns that a theorist undertaking this kind of analysis ‘will sooner or later become
a mystifier and an apologist,’ ‘acquiescing to institutional fetishism’ and conspir-
ing to the impoverishment of legal analysis through its foreclosure of broader
conflict. In contrast, Critical Legal Analysis is geared to restoring ‘deviations and
contradictions
as
intellectual and political opportunities rather than
threat^.'^
To
resist the severing of legal analysis from broader conflicts, it will draw from the
system itself to reveal suppressed possibilities by showing legal dogma to
be
incoherent, then play
up
the ‘dangerous supplements.’ Where the law exhibits the
overwhelming tendency to assimilate the ‘deviant’ case within already existing
schemata of processing it, the critical scholar will emphasise alternative
possibilities, new relevancies that upset settled patterns. There is a strong
continuity in Unger’s accounts of how this strategy of ‘dis-entrenchment’ and ‘re-
construction’ is envisaged, going back to at least his CLS manifesto: and variably
described
as
‘deviationist doctrine,’6 ‘negative ~apability,’~ and ‘mapping and
critici~m.’~
In
each case, significantly, the same political logic of disruption draws
from within the institution: as Unger put it in the Chorley lecture, his Critical Legal
Theory understands the institution
as
law but undertakes it as politics.
I
will return to this later to detail, with Unger, aspects of this institutional
imagination. But I want to argue that Unger invests too much in this. While he is
right to say that the system’s inertia can be shaken from within, the endeavour
cannot carry through to those constitutive assumptions that underlie the
institutional identity
as
such. Employing Niklas Luhmann’s terms, we will
see
that there are certain constitutive reductions at play in law’s picture of the world
and to challenge those would not be to undertake law
as
politics but to do away
with law altogether.
To
denote this form of unshakeable inertia,
I
will call it
‘structural’ and distinguish it from a second form, ‘simple’ inertia, that can indeed
be successfully redressed.
In
effect, this is the dilemma that,
I
suggest, Unger has
to face: either he concedes the ‘structural’ type of inertia in which case he
can
exploit the transformative potential of the system to combat ‘simple’ inertia, but
within the limits dictated by the system,
or
he concedes nothing, undertakes law
as
politics, but then collapses the specific institutional achievement that
is
law and the
possibilities
it
offers. And if Unger thus collapses law into politics, what remains
of the heuristic value of the politics
of
law? Of course, Unger would contest this
and argue that it resurrects the unnecessary disjunctions between what is
revolutionary and thus authentic, and what is institutional and thus frozen, what
is total, radical change against what is moderate and fragmentary change, etc.
To
some extent he must
be
right, but then, can he really say that there is no asking
price for a politics of law?
I
suggest not.
In
fact,
I
will argue counter-intuitively
perhaps, if law does harbour transformative opportunities it is because there are
limits to law’s institutional imagination that take the form of reductions which, at a
deep level, cannot but remain in place. We cannot retain the opportunities if we do
away with the reductions. And, as a result, law cannot but foreclose broader
political conflict and, in the last instance, assimilate transformative opportunity to
its own self-maintenance and assimilate the disruptive to its own controlled
4
ibidpp9-11.
5
6
ibid
pp
15ff.
7
8
Unger,
The Critical
Legal
Studies Movement
(Cambridge,
Mass:
Harvard University
Press,
1983).
Unger,
Social Theory: Its Situation
and
Its
Tusk
(Cambridge: Cambridge University Press,
1987)
pp81, 156-157.
Unger,
op
cit
n
2,
pp
2Off.
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