a realistic vision? roberto unger on law and politics

KEVIN WALTON ?

A REALISTIC VISION? ROBERTO UNGERON LAW AND POLITICS

ABSTRACT. This paper considers Roberto Unger’s views on legal reasoning. His accountis defended against two misplaced attacks. The first critique is by Emilios Christodoulidis.Using the language of systems theory, Christodoulidis contends that Unger’s programme ofdemocratic experimentalism cannot be achieved through law, as the constitutive structureof the legal system is immune to politics. Christodoulidis accuses Unger of attemptingto reduce law to politics. It will be argued, however, that Unger does no such thing. Thesecond attack holds that Unger’s criticisms of objectivism apply to his own democraticvision and that, as a result, he cannot promote this vision without self-contradiction. Again,it will be argued that this criticism rests on a misunderstanding of Unger’s views. Thepaper concludes with a tentative objection to the substantive proposals of Unger’s work,suggesting that they ought to be replaced by a pluralist account of value.

KEY WORDS: democracy, legal reasoning, objectivity, pluralism, politics, systems theory,Unger

INTRODUCTION

“It is true that we cannot be visionaries until we become realists. It is alsotrue that to become realists we must make ourselves into visionaries.”1 Itis with these words that Roberto Unger concludes a recent book. Theycapture the essence of his project. For Unger, politics must work fromwithin existing legal materials. However, it is only by introducing politicsthat one can make sense of these materials in the first place. In this way heattacks what he perceives to be the malignant state of contemporary legalthought. For him, a belief in the necessity of current modes of reasoningcauses legal analysis to be shackled by a lack of imagination. The legalhas become detached from the political and this has prevented adequaterealisation of the shared democratic project. Unger argues, however, that

? The author wishes to thank Emilios Christodoulidis, Hugh Collins and an anonymousreferee for their helpful comments on earlier versions of this article. Of course, any errorsare those of the author alone.

1 R.M. Unger,What Should Legal Analysis Become?(London: Verso, 1996), 190.

Res Publica5: 139–159, 1999.© 1999Kluwer Academic Publishers. Printed in the Netherlands.

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things need not be this way and he proposes “a way to place legal analysisin the service of democratic experimentalism”.2

This article explores Unger’s views on legal reasoning by consideringtwo attacks on his work.3 The first – from the perspective of systemstheory – argues that Unger is guilty of collapsing the boundary betweenthe legal and the political with the result that he demolishes law as adistinct institution. In effect, this is to claim that Unger’s vision over-whelms his realism. The second attack contends that Unger contradictshimself when he berates other writers for claiming that their accounts oflegal reasoning are “objective” while maintaining such a stance himself.This criticism focuses on the nature of his vision. However, Unger’s workcan be defended against both of these critiques. They misunderstand hisproject and it is by exposing the misconceptions upon which they rely thatUnger’s realistic vision can be rescued. In order to do this, it is necessary tocommence with a synopsis of Unger’s views on legal reasoning, situatinghis recent work within the context of earlier thought.

CONTEMPORARY LEGAL ANALYSIS AND BEYOND

Unger calls the dominant style of current legal reasoning “rationalisinglegal analysis”.4 This “is a way of representing extended pieces of lawas expressions, albeit flawed expressions, of connected sets of policiesand principles”,5 as opposed to the idea of “law as factional self-dealingby powerful interest groups”.6 In this sense, rationalising legal analysisis formalistic in nature. For Unger, “formalism” is the belief that legalreasoning is distinct from politics and that only by uncoupling law from

2 Ibid., 23.3 This article focuses on legal reasoning. As Unger realises (op. cit., 106–119), legal

reasoning must be distinguished from judicial reasoning. The questions which Unger raisesconcerning the position of judges are not considered here. The normative structure of legaldiscourse rather than the more practical issue of who actually decides legal cases is thelocus of the present discussion. It is assumed that any member of a particular society can –given sufficient information – reason legally and reach a conclusion as to how a given caseought to be decided. Whose decision is authoritative rather than simply academic dependson current social structures and is another matter altogether.

4 For an early use of this phrase, see R.M. Unger,Social Theory: Its Situation and itsTask. A Critical Introduction toPolitics,a Work in Constructive Social Theory(Cambridge:Cambridge University Press, 1987), 147–148.

5 Legal Analysis, op. cit., 36.6 Ibid., 47. One way in which Unger elaborates upon this distinction is by comparing

what he calls law’s “prospective” and “retrospective” genealogies: cf. 65–67.

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politics is legal doctrine possible.7 Unger is not concerned here solelywith the view that a legal rule can be applied in a particular case simplyby considering the content of that rule. Rather, he is interested in thosetheorists who rely on “impersonal purposes, policies, and principles as anindispensable component of legal reasoning”.8

Rationalising legal analysis also holds that “[t]hrough rational recon-struction, entering cumulatively and deeply into the content of law, wecome to understand pieces of law as fragments of an intelligible planof social life”.9 From this point of view, the outcome of a specific caseis determined by referring to a particular vision of the good which isinherent in the legal materials, rejecting as “mistakes” those aspects oflegal doctrine which do not “fit”.10 For Unger, this stance is one of “objec-tivism”, that is, “the belief that the authoritative legal materials – and thesystem of statutes, cases, and accepted legal ideas – embody and sustaina defensible scheme of human association”.11 Objectivism amounts tothe claim that there is a “logic of social types, each with its intrinsicinstitutional structure”.12

Crucially, for Unger, formalism and objectivism go hand in hand. Ashe says, “formalism presupposes at least a qualified objectivism”.13 Thisis because legal policies and principles must necessarily refer to “somenormative theory extrinsic to the law”;14 and only by presupposing theobjectivity of that theory can one prevent the distinction between law andpolitics from collapsing.

Given the reliance of formalism on objectivism, Unger need onlyprovide compelling arguments against the latter in order to underminerationalising legal analysis as a whole. Contrary to objectivism, hecontends that the “canonical style of legal doctrine cannot be understood

7 R.M. Unger, The Critical Legal Studies Movement(Cambridge, Mass: HarvardUniversity Press, 1986), 1–2. For Unger, “politics” is used in a narrower and a broadersense. The narrower sense relates to conflicts of power, the broader sense to conflictsbetween social ideals. On this, seeSocial Theory, op. cit., 10.

8 Critical Legal Studies, op. cit., 1. For Unger, “[f]ormalism in the conventional sense– the search for a method of deduction from a gapless system of rules – is merely theanomalous, limiting case of this jurisprudence”.

9 Legal Analysis, 36.10 On this, see ibid., 37: “Too much pretence of discovering the ideal conceptions ready-

made and fully potent within existing law, and the legal analyst becomes a mystifier andan apologist. Too much constructive improvement of the law as received understandingrepresents it to be, and he turns into a usurper of democratic power.”

11 Critical Legal Studies, op. cit., 2.12 Ibid., 6.13 See ibid., 2–3.14 Ibid., 3.

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as the inevitable consequence of the need to think clearly and connectedlyabout law”.15 There is no system of social types with a built-in institu-tional structure. In contract law, for instance, legal doctrine presents twoconflicting “theories” of the law.16 This lack of coherence is incompatiblewith the idea that there is a particular vision of the good embedded withinlaw. Thus, against formalism, Unger argues that the distinction betweenlaw and politics cannot be sustained. This follows from the failure ofobjectivism, for the reason that the bifurcation of law and politics neces-sarily presupposes that a particular vision of the good supports the lawin a specific area. As Unger states, “[n]o matter what the content ofthis background theory, it is, if taken seriously and pursued to its ulti-mate conclusions, unlikely to prove compatible with a broad range ofthe received understandings. Yet just such a compatibility seems to berequired by a doctrinal practice that defines itself by contrast to open-endedideology.”17

With the failure of rationalising legal analysis to maintain the distinc-tion between legal debate and political controversy, Unger argues foran alternative view of legal doctrine. He calls this “legal analysis asinstitutional imagination”18 or “deviationist doctrine”:19

[T]he revised style of doctrine commits itself to integrate into standard doctrinal argumentthe explicit controversy over the right and feasible structure of society, over what therelations among people should be like in the different areas of social activity.20

This is, in effect, to connect law with politics, breaking down the barriererected by rationalising legal analysis. By refusing to ignore the supposedaberrations in the legal materials of a particular system, legal analysis asinstitutional imagination – through the practice of “mapping” – revealsa diversity of rules and principles and thus enlarges the scope of legalanalysis beyond that practised by the rationalising schools. Mapping is “theattempt to describe in detail the legally defined institutional microstructureof society in relation to its legally articulated ideals”.21 It is concernedwith retrieving those counterprinciples which had previously been ignored,

15 Legal Analysis, op. cit., 78.16 See Critical Legal Studies, op. cit., 7. The two views are: (i) the “dominant”

principle of freedom to decide who to contract with and on what terms; and (ii) the“counterprinciple” that grossly unfair bargains will not be upheld: cf. 57–88.

17 Ibid., 9.18 Legal Analysis, op. cit., 129–134.19 Critical Legal Studies, op. cit., 15–22. For a useful summary of the content of

deviationist doctrine, see H. Collins, “Roberto Unger and the Critical Legal StudiesMovement”,Journal of Law and Society14 (1987), 387–410, at 404–407.

20 Critical Legal Studies, op. cit., 17.21 Legal Analysis, op. cit., 130.


stressing the conflict which resides in the substance of the law. The crucialmove is connecting this disunity with politics: “[C]ritical doctrine doesthis by finding in these disharmonies the elements of broader contestsamong prescriptive conceptions of society.”22 Unger calls this process“criticism”: criticism “explore[s] the interplay between the detailed insti-tutional arrangements of society as represented in law, and the professedideals or programs these arrangements frustrate and make real”.23 Mappingand criticism are married as a matter of theoretical necessity: “[M]appingprovides materials for criticism, and criticism sets the perspective and theagenda for mapping.”24 Together they “form a dialectical unity”,25 trans-forming legal doctrine into political controversy by means of “internaldevelopment”.26

But simply to proclaim that legal doctrine reflects fundamentaldisagreements over the good does not say what the conclusion in a partic-ular case ought to be. Hence, legal analysis as institutional imaginationmust be coupled to a programmatic vision of the ideal society. This iswhere the critique of objectivism comes in. The rejection of the idea thatthere is one right answer inherent in legal doctrine liberates the legaltheorist to develop an account of alternative institutional forms.27

Unger’s programmatic institutional ideas are inspired by a vision ofsocial life shared by liberals and socialists.28 This is the project of “demo-cratic experimentalism”, which aims “to lift the grid of social hierarchyweighing upon our practical, passionate, and cognitive dealings with oneanother”.29 Unfortunately, liberalism and socialism have failed to realise

22 Critical Legal Studies, op. cit., 17.23 Legal Analysis, op. cit., 130.24 Ibid., 132. However, as Unger makes clear (134), this is not to say that a “full-blown

theory” of criticism including “a practice of social explanation, a set of programmaticideas, and a conception of the relation between programmatic thinking and social explana-tion” is required before mapping can take place. Such a theory is not necessary to beginmapping, but a fully developed account of legal analysis cannot be produced without it.

25 Ibid., 134.26 SeeCritical Legal Studies, op. cit., 18–20.27 See ibid., 22–25.28 SeeLegal Analysis, op. cit., 6, 180–181;Critical Legal Studies, op. cit., 22–23. Cf.

Unger’s attitude to liberalism inKnowledge and Politics(New York: Free Press, 1984). Onthis, see M. Stone, “The Placement of Politics in Roberto Unger’sPolitics”, in Law andthe Order of Culture, ed. R. Post (Berkeley: University of California Press, 1991), 78–108;W. Kymlicka, “Communitarianism, Liberalism, and Superliberalism”,Critical Review8(1994), 263–284, at 265.

29 Legal Analysis, op. cit., 181. See also R.M. Unger,Democracy Realized: TheProgressive Alternative(London: Verso, 1998), 5–29. Cf. “superliberalism” (Critical LegalStudies, op. cit., 23) and “empowered democracy” (ibid., 24).

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this goal of emancipation owing to a dogmatic reliance on a logic of socialtypes which blinkers thinking about social transformation.30 Unger’s aimis to take democratic experimentalism seriously and to push it to its radicalconclusions.31 He envisages “an institutional structure, itself self-revising,that would provide constant occasions to disrupt any fixed structure ofpower and coordination in social life”,32 the objective being to maximisethe production of “negative capability”, or the possibility to transcenda given social context.33 The notion of negative capability is ultimatelyjustified by the fact that it is intrinsically valuable:

[T]he search for the less conditional and confining forms of social life is the quest for asocial world that can better do justice to a being whose most remarkable quality is preciselythe power to overcome and revise, with time, every social or mental structure in which hemoves.34

THE RELATIONSHIP BETWEENREALISM AND VISION

In a recent paper, Emilios Christodoulidis argues that the production ofnegative capability by means of internal development threatens to extirpatethe distinction between law and politics by collapsing the former into thelatter.35 Using the language of systems theory,36 he contends that there

30 See, for example,Social Theory, op. cit., 12 andCritical Legal Studies, op. cit., 23.31 Critical Legal Studies, op. cit., 24.32 Ibid., 30.33 See ibid., 93–94. Negative capability is defined (93) as “the practical and spiritual,

individual and collective empowerment made possible by the disentrenchment of formativestructures”. In other words, by subjecting the framing structures of society to constantrevision one increases empowerment and thus the level of negative capability.

34 Ibid., 23. Importantly, Unger considers possible institutional frameworks for theeconomy, government and law through which negative capability might be achieved: seeLegal Analysis, op. cit., 135–170;Critical Legal Studies, op. cit., 31–40;Democracy Real-ized, op. cit., generally; R.M. Unger,False Necessity: Anti-Necessitarian Social Theory inthe Service of Radical Democracy. Part I of Politics, a Work in Constructive Social Theory(Cambridge: Cambridge University Press, 1987), 441–539.

35 E.A. Christodoulidis, “The Inertia of Institutional Imagination: A Reply to RobertoUnger”, Modern Law Review59 (1996), 377–397. This article was written in responseto Unger’s “Legal Analysis as Institutional Imagination”,Modern Law Review59 (1996),1–23 (reproduced inLegal Analysis, op. cit., 26–52, 129–134, 189–190).

36 This article does not pretend to provide an account of systems theory. The principalconcern is to explore the relationship between law and politics in Unger’s theory. Onsystems theory, see, for example, N. Luhmann,Social Systems(Stanford: Stanford Univer-sity Press, 1995). For a basic summary of the axioms of systems theory, see M. King, “The‘Truth’ About Autopoiesis”,Journal of Law and Society20 (1993), 218–236.


are certain fundamental legal “reductions” which cannot be challengedwithout destroying law as a system. Therefore, the constitutive structureof law is always immune to visionary politics and “Unger’s emancipatorythesis is untenable because his politics sooner or later stumble on the insti-tutional threshold”.37 For Christodoulidis, this means that, for example,Unger’s “solidarity rights”38 – which “give legal form to social relationsof reliance and trust”39 – cannot be institutionalised in the legal systemwithout demolishing the system altogether. This is because the “reduc-tion achievement”40 of law cannot make sense of fully-fledged solidarity;it can comprehend only that which is legally defined. In short, Christo-doulidis argues that recognising the “structural inertia” of the legal system“has major consequences for radical politics” because “[i]t brings alreadyexisting structural assumptions into play as preconditions to all attemptsto push for change”,41 with the result that change “will only come aboutas structural drift, a move away from already existing structural givens”.42

This is seen to be incompatible with Unger’s vision of a “structure-denyingstructure”43 aimed at increasing negative capability.

One may object immediately that this argument is simply irrelevant,that Unger’s thought and systems theory are totally unrelated and talk pasteach other. But this threshold objection is too superficial. Christodoulidisis making an important point here about the relationship between law andpolitics, between realism and vision, in Unger’s work. If law collapsesinto politics then Unger fails in his attempt to reform society through law.However, it will be argued that Christodoulidis’s argument holds only ifone misconstrues Unger’s theory. When read accurately, it is not as incom-patible with the imperatives of systems theory as Christodoulidis wouldlike to think.44

37 “Inertia”, op. cit., 395.38 Ibid., 535–539.39 Ibid., 535.40 See ibid., 383ff.41 Ibid., 388.42 Ibid., 388.43 False Necessity, op. cit., 575.44 Of course, this is not to say that systems theory and Unger are compatible in every

respect. The present argument is concerned with systems theory only insofar as it sustainsChristodoulidis’s attack. It is worth noting, however, that, for systems theory, the environ-ment of the legal system is not constituted solely by the political system. Rather, variousdifferent social rationalities impact upon legal discourse. On this, see G. Teubner, “Alterapars audiatur: The Law in the Collision of Discourses”, inLaw, Society and Economy:Centenary Essays for the London School of Economics & Political Science 1895–1995, ed.R. Rawlings (Oxford: Clarendon Press, 1997), 149–176. Therefore, although this articleis limited to a discussion of the relationship between the political system and the legal

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Christodoulidis begins his paper by noting that “Unger’s great noveltyis that his politics are both radical and institutional”.45 Indeed, it iscentral to Unger’s programme of reform that it works from within theexisting structure by means of deviationist doctrine rather than requiringthe replacement of the whole legal structure through revolution.46 Giventhat Christodoulidis seems to be aware of the fact that deviationist doctrineand visionary thought are intended to operate in tandem, it is strange thathis attacks on Unger’s theory seem implicitly to ignore its essential insti-tutional component. Only by over-emphasising the radical and denigratingthe institutional in Unger’s theory can Christodoulidis accuse Unger ofannihilating the legal order.

This can be seen by considering Christodoulidis’s treatment of soli-darity rights. He makes much of the fact that they are concerned with“pre-legal” relationships. Because the legal system can capture only thatwhich is legally defined, Christodoulidis argues that the “pre-legal” cannotbe comprehended unless it is “legal”, which, for him, would seem todefeat the very point of solidarity rights.47 However, this argument playson an ambiguity in the use of the word “legal”. Unger’s reference to the“pre-legal”48 relates to those “half-articulate relations of trusting interde-pendence”49 which often underlie more formal relationships between twoparties. These “pre-legal” relations can quite easily be captured by legalcategories without any suggestion of a paradox. Indeed, as Unger hasdemonstrated, current contract law already contains provisions referringto social relations between the contracting parties.50 It is such legal normsthat he wishes to promote to greater prominence. Therefore, far from trying

system, one ought to bear in mind that the economic system and the scientific system, forexample, also collide with the legal system.

45 “Inertia”, op. cit., 377: Christodoulidis acknowledges that Unger’s theory is not “anappeal to the smashing of all contexts, to the tireless resistance to the institutional”.

46 On this, see, for example,Critical Legal Studies, op. cit., 114–116.47 “Inertia”, op. cit., 382, 393. Christodoulidis comes close to viewing solidarity rights

in such a way that they are by definition resistant to institutionalisation in law. He doesthis by describing solidarity rights in such a vague manner that it would be very difficultto capture them in legal categories. But Unger (Social Theory, op. cit., 155) is at pains tostress that his programme of reform is concrete in nature: “[A] relatively more denatur-alised or disentrenched context is at least as distinctive and detailed in its content as itsrelatively more entrenched counterpart. In fact, if anything, it is richer in worked-out detailbecause the people who establish and reproduce it are more keenly aware of its artifactlikecharacter.” See further ibid., 206–207.

48 False Necessity, op. cit., 538.49 Ibid., 536.50 See Critical Legal Studies, op. cit., 57–88. Cf. J.W. Singer, “The Reliance in

Property”,Stanford Law Review40 (1988), 611–751.


to undermine the status of the legal system through the introduction ofalien concepts, Unger – by means of mapping and criticism – seeks torecover fragments of solidarity from existing legal materials. It is only ifChristodoulidis overplays the visionary component of solidarity rights tothe extent that they bear no relation to current institutional structures thathe can perceive a disjunction between law and politics. For Unger, theprogramme of reform is always circumscribed by existing legal doctrine:the “pre-legal” must always first be “legal”.

It is Unger’s idea of internal development which ensures that the bound-aries of the legal system are maintained. Just as systems theory regardsthe legal system as normatively closed,51 so Unger’s deviationist doctrinedemonstrates a “willingness to take the extant authoritative materialsas starting points” with “normative authority”.52 In this regard, systemstheory and Unger’s proposals have a great deal in common. Both areaware of the institutional limits of the law. As Christodoulidis says, “legalexpectations allow uncertainty in specific, controlled ways and immunisethe system towards other uncertainties it cannot control”.53 Unger putsit slightly differently, but the gist is the same: for him, revision can belimited “by institutional considerations lacking any higher authority”54

simply because it depends upon “the starting points provided by a partic-ular tradition”.55 Reform must begin with “small-scale variations, manifestin the nuances of contemporary doctrine”56 rather than with an appealto transcendent insight. Crucially, this means that if the formative struc-ture (including the legal system) of a particular society is substantiallyentrenched – in other words, if it is relatively immune to disturbance – thenit may be exceedingly difficult to achieve the democratic project. As Ungersays, “the style of legal argument in a relatively more entrenched contextwill have to expose more concealed disharmonies among recognised prin-ciples or between pretence and practice before it turns into an attack on the

51 See, for example, N. Luhmann, “Operational Closure and Structural Coupling: TheDifferentiation of the Legal System”,Cardozo Law Review13 (1992), 1419–1441; N.Luhmann, “The Unity of the Legal System”, inAutopoietic Law: A New Approach to Lawand Society, ed. G. Teubner (Berlin: Walter de Gruyter, 1988), 12–35, at 19–23.

52 Critical Legal Studies, op. cit., 15.53 “Inertia”, op. cit., 387.54 Critical Legal Studies, op. cit., 20. The reference to a lack of higher authority for

systemic constraints indicates Unger’s concern that he not be misunderstood as reintro-ducing a logic of social types. It would seem that there is no reversion to objectivism asthe limits of the legal system are merely the result of contingent historical factors. Cf.Christodoulidis, “Inertia”, op. cit., 378, 391.

55 Critical Legal Studies, op. cit., 18.56 Ibid., 8.

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dominant imaginative scheme of possible and desirable forms of humanassociation”.57 He explicitly recognises the possibility of the method ofinternal development hampering the success of his project to create anempowered democracy; however “[w]e build with what we have andwillingly pay the price for the inconformity of vision to circumstance”.58

Christodoulidis may remain unconvinced. He may object that devi-ationist doctrine, although working with legal materials, is responsiblefor an illegitimate political interference in the legal domain. In otherwords, he may maintain that the normative closure of the legal systemis compromised by fastening deviationist doctrine to a view of politicalreform. For systems theory, the political system can provoke change inthe legal system, but the latter experiences this influence as an “irritation”which it can comprehend only by means of distinctions already presentin that system.59 With this in mind, Christodoulidis may contend that thelegal and political systems do not understand one another to the extent thatUnger seems to suggest. But this argument fails to hit home. Unger fullyrespects the normative closure of the legal system. In a notable passage,he argues that an “institutional innovation may fail because it cannot begrasped and dealt with as an intelligible transformation of rememberedsequences or current arrangements”.60 Therefore, although Unger’s polit-ical vision can inform legal reasoning on a cognitive level, an institutionalchange proposed in the political system is understood differently by thenormative structure of the legal system. The normative closure of the legalsystem determines what is to count as information from that system’senvironment (including the political system).61 It is on this basis that Ungerconcedes that if a political proposal fails to resonate in the legal system,then social reform through the development of legal doctrine is renderedimpossible. However, it is important to stress at this juncture that to speakof the normative closure of the legal system is not the same as adopting theformalist stance of rationalising legal analysis. The former is open to thepolitical arena under controlled circumstances, whereas the latter is closedto politics completely.

Another possible objection which Christodoulidis may raise to thisview is that it ignores a crucial theme in Unger’s thought, namely the idea

57 Social Theory, op. cit., 154. See alsoFalse Necessity, op. cit., 312–313.58 Critical Legal Studies, op. cit., 118–119.59 See, for example, G. Teubner, “Legal Irritants: Good Faith in British Law or How

Unifying Law Ends Up in New Cleavages”,Modern Law Review61 (1998) 11–32.60 False Necessity, op. cit., 170.61 See, for example, Luhmann,Social Systems, op. cit., 67–69.


that formative structures should be capable of revision by individuals.62

Christodoulidis may contend that to subject the structure of the legalsystem to revision would be, in effect, to destroy law as a discrete institu-tion. For him, the “structural inertia” of the legal system will always placelimits on what can be altered because “whatever challenge is to register inlaw will only make a difference in the evolution of the system on the basisof its alignmentto already existing reductions”.63 With this in mind, heasks: “if all activity is contextual, can all contexts be questioned?”64

Christodoulidis purports to find a paradox here. But there is a paradoxonly if everything is ‘up for grabs’ and yet somehow constrained atthe same time.65 Is this what Unger intends? Does he wish to push theideal of negative capability to the extent that the distinction between“structure-preserving routines” and “structure-transforming conflicts”66

simply vanishes, thus reducing law to politics? Or does he believe that,at any one time, there is always something given which controls theamount of change which is possible within the system? For Christo-doulidis’s attack to be effective, Unger must believe the former. This,however, is not the case. Far from repudiating the separation of constraintfrom transformation, Unger wishes merely to “diminish”,67 “weaken”68

or “soften”69 the distinction. He admits that “[w]e can never resolve thetension between the need to accept a context and the inadequacy of allparticular contexts”:70 the distinction “never entirely disappears”.71 Inother words, there is always a gap between being defined by a context andrevising that context. The gap can be closed, but never completely. This isbecause, for Unger, a system must provide for its own revision. As he says,“[a] formative context shapes the means and opportunities of a struggle”,because “it makes certain conceptions, programs, or ideals easier to justifyand even easier to comprehend than others”.72 Structure-denying activityalways occurs within a structure. The achievement of negative capability

62 See, for example,False Necessity, op. cit., 319ff.63 “Inertia”, op. cit., 390.64 Ibid., 396.65 Cf. B. Yack, “Toward a Free Marketplace of Social Institutions: Roberto Unger’s

‘Super-Liberal’ Theory of Emancipation”,Harvard Law Review101 (1988) 1961–1977, at1974.

66 See, for example,Social Theory, op. cit., 5.67 Legal Analysis, op. cit., 185;False Necessity, op. cit., 4, 7, 31, 32.68 Social Theory, op. cit., 5.69 False Necessity, op. cit., 13, 36.70 Ibid., 32.71 Ibid., 35.72 Ibid., 312.

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through the overcoming of constraints is the aim of Unger’s programme,but – in line with the method of deviationist doctrine – this depends onthe system providing for its own amendment. Structures are perpetuallylimiting, although some allow for greater self-revision than others.

Thus, Christodoulidis finds a tension between the idea of a structure-denying structure and the precepts of systems theory only because hedwells upon Unger’s ideal of empowerment. However, it is clear that theattainment of this goal is not unconditional. The other side of Unger’stheory – enlarged doctrine – ensures that the political does not swallowthe legal. Although Unger wishes to enhance the ability of structures torework themselves, he realises that this must occur within the confines ofthe legal system. Vision and realism go together.

THE NATURE OF UNGER’ S VISION

Some commentators have responded to Unger’s theory with the charge ofself-contradiction. They argue that he cannot validly criticise rationalisinglegal analysis for relying on a supposedly false theory of objectivism whileat the same time promoting his own programme of empowered democracy.For instance, Hutchinson and Monahan hold that Unger “cannot offer avision of a reconstituted society while remaining faithful to his own basictheoretical assumptions”.73 In other words, Unger cannot have it bothways: either his criticisms of objectivism apply to all theories (includinghis own), or they do not apply at all. As Hutchinson and Monahan put it:

[D]espite the grand style and sweep of Unger’s theory, it appears to suffer from a centraland potentially fatal flaw. All attempts at constructive theory seek to describe the world as itcould and ought to be. Consequently, the major hurdle for any serious theorist is to providesome normative justification for his or her vision. Yet, the very premises underlying Criticalthought appear to preclude such a justification: To sustain any definite vision of futuresociety, the Critical scholars must renege on their basic commitment to social contingencyand historical relativity. CLS is ultimately hoisted on its own Critical petard.74

Elsewhere, Hutchinson has accused Unger of “playing fast and loose withfoundationalism” by claiming “a privileged position for his own insights atthe same time as and under cover of his denunciation of such privilege”.75

If this analysis is valid, it exposes a fundamental problem in Unger’s work.

73 A.C. Hutchinson & P.J. Monahan, “Law, Politics, and the Critical Legal Scholars: TheUnfolding Drama of American Legal Thought”,Stanford Law Review36 (1984), 199–245,at 236.

74 Ibid., 233.75 A.C. Hutchinson, “A Poetic Champion Composes: Unger (Not) on Ecology and

Women”, University of Toronto Law Journal40 (1990), 271–295, at 279. See also J.M.


It represents an attack on a pivotal aspect of his theory, namely, the shiftfrom social explanation to a programme of social reform. It will be arguedhere, however, that the criticism is grounded in a misunderstanding. Inorder to demonstrate this, it is necessary to clarify the nature of Unger’sviews on objectivism.76

For Unger, an objectivist is one who understands society “as merelygiven in a self-generating process that would unfold independently ofthe will and the imagination and that would condemn people constantlyto re-enact a drama they were unable to stop or even to understand”.77

In other words, objectivism is the belief that the existing frameworksof social life ought to be taken for granted and accorded a sense ofnecessity and authority. Unlike positivist social science, Unger does notdeny the importance of the distinction between formative contexts andformed routines.78 In this, he is at one with doctrines such as Marxism.79

But, crucially, he departs from these “deep-structure” or “deep-logic”social theories in two other respects.80 First, Unger denies that there isa limited class of types of social organisation, existing only as indivis-ible packages. Second, he rejects the belief that the operation of theseframeworks can be explained only by “deep-seated economic, organ-isational, and psychological constraints or . . . irresistible developmentalforces supposedly underlying the chaos of historical life”.81 Unger arguesthat these two assumptions simply do not fit the facts of history. Moreover,by relying on the idea of “a script that towers over conscious actionsand works through them”,82 they fail to see that formative contexts neednot constrain to the extent that is alleged. That is, they fail to see thatthings could be different. This is the crux of Unger’s argument against

Finnis, “On ‘The Critical Legal Studies Movement’ ”,American Journal of Jurisprudence30 (1985), 21–42, at 41.

76 This account deals only with Unger’s writings fromThe Critical Legal Studies Move-mentonwards. The relationship between the argument against objectivism given here andthat in Knowledge and Politics(op. cit., 76–81) is an interesting, but tangential, matter.For discussion, see W. Ewald, “Unger’s Philosophy: A Critical Legal Study”,Yale LawJournal 97 (1988), 665–756; C. West, “CLS and a Liberal Critic”,Yale Law Journal97(1988), 757–771.

77 Critical Legal Studies, op. cit., 108.78 Positivist social science “rejects the search for comprehensive social or historical laws

in favour of a more limited explanatory task”. But, as Unger points out, such a view mustrely implicitly on objectivism. On this, seeSocial Theory, op. cit., 136. For an account offormative contexts, see 3–4, 88–89.

79 Social Theory, op. cit., 3.80 Ibid., 4, 90–93. These two moves of deep-structure theory are closely linked: see 92.81 Ibid., 4.82 Ibid., 93.

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objectivism. He refuses “to treat contemporary formative contexts as theexpressions of unyielding practical imperatives or as flawed approxima-tions to an ideal plan for human existence”.83 Rather, “[w]e must reasonabout constraints without seeing them as the superficial expression ofintelligible, lawlike necessities”.84

For Unger, the social order is nothing more than “frozen politics”.85

To claim otherwise is to resort to crude fetishism.86 There is no plot thatdetermines formative contexts. Rationalising legal analysis, however, failsto grasp this and, as a result, “it fills up the imaginative space in whichanother way of thinking might take root”.87 By subscribing to the notionthat there is a “developing rational scheme that different fragments of lawmay be seen to exemplify”,88 it smothers the possibility of developingalternative views about society, including law. It is the assumption that thecurrent situation exhausts all options which Unger denies. His point is asimple one concerning the status of social structures. It amounts to a repu-diation of the idea that social change takes place in accordance with a scriptthat exists beyond human control. This is not automatically to condemn thesubstance of present structures – a separate argument is required in orderto do that – it is merely to clarify their status as “artifactual”.89 Unger’sargument here is metaphysical, not political. He is concerned with makingspace for a radical political programme – in fact, it need not be his – in theface of deep-structure social theory which “disorients political strategy andimpoverishes programmatic thought by making both of them subsidiaryto a ready-made list or sequence of social order”.90 In short, he craves“emancipation from false necessity”91 and hence a recognition that “thingscan be otherwise”.92

83 Ibid., 149.84 Ibid., 35. See alsoLegal Analysis, op. cit., 23.85 See, for example,Social Theory, op. cit., 11, 145.86 Ibid., 200: “Institutional fetishism is the imagined identification of highly detailed

and largely accidental institutional arrangements with comprehensive and vague ideals likefreedom and equality.” And (201): “[T]he structure fetishist denies that we can change thequality as well as the content of formative contexts – the extent to which they impose onour practical, passionate, and cognitive relations a script we cannot easily rewrite.” SeealsoLegal Analysis, op. cit., 129.

87 Legal Analysis, op. cit., 106.88 Ibid., 109. See alsoSocial Theory, op. cit., 148, where Unger denies that “the materials

of the law add up to an intelligible and defensible order”.89 SeeSocial Theory, op. cit., generally, but especially 1–17.90 Ibid., 93.91 Ibid., 137.92 Ibid., 145.


Therefore, in order to be guilty of self-contradiction, Unger wouldhave to be alleging that his programmatic ideas correspond to the relent-less narrative of an independent social text which will always determinepossible social action. In other words, he would have to be arguing thatthe production of negative capability through empowered democracy isthe only option. And, indeed, it might seem that this is precisely theposition Unger holds when he states that there are limits upon the insti-tutional elements which can be integrated in a formative context.93 Heexplicitly denies, after all, that “all institutional arrangements and imagina-tive preconceptions can be combined with all others”.94 This would seemto be opposed to his view that objectivism is mistaken in supposing thatinstitutional orders must stand or fall together as a single unit. If this is thecase, then Unger’s critics would seem to be quite justified in charging himwith self-contradiction. However, upon closer examination, it is evidentthat the limits Unger describes are in fact quite compatible with his attackon deep-logic theory. This is because they are contingent rather than neces-sary. He claims merely that “[h]istorical experience suggests that somejuxtapositions just do not work” if they “embody very disparate measuresof emancipation from false necessity”.95 Unger does not lay down a prede-termined view of social structures, as in deep-logic theory.96 Rather, hesays thatin principle any combination of institutions ought to be possible,but that in practice this is unlikely to be the case. Therefore, in spiteof initial impressions, Unger would not seem to be subscribing to deep-structure theory when articulating his programmatic vision. But what, then,is the status of his theory? It is certainly true that it is not neutral amongcompeting conceptions of society: and Unger explicitly recognises this.97

His vision claims “normative authority”98 by taking a stand on the factsabout society and personality.99 But – one may object – if these moralopinions do not connect to some kind of moral reality are they not thensimply arbitrary?

Unger acknowledges that “[t]he reluctance to push to extremes thecriticism of an inherited tradition of social and historical analysis is habitu-

93 On this, see P.P. Craig,Public Law and Democracy in the United Kingdom and theUnited States of America(Oxford: Oxford University Press, 1990), 383–384.

94 False Necessity, op. cit., 126.95 Ibid., 166.96 See Social Theory, op. cit., 158: “the outcome of reconstructive activity is not

foreordained”.97 See, for example,False Necessity, op. cit., 365, 571;Legal Analysis, op. cit., 19, 137.98 Critical Legal Studies, op. cit., 91.99 See ibid., 95.

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ally justified by the fear that its outcome will be nihilism”.100 But hedenies that political (and legal) judgment are radically indeterminate.101

By maintaining a belief in the importance of formative contexts, Ungerargues that his “super-theory”102 upholds the possibility of social explana-tion. For him, it is only if one denies the relevance of social frameworksthat one surrenders to nihilism.103 This would seem to be the position ofwhat Unger calls the “ultra-theorist”.104 Such a writer “believes that wecannot dispel the illusions of false necessity without putting a stop to theenterprise of general theorising about society”.105 In this respect, the ultra-theorist accuses Unger of practising a new version of deep-logic socialtheory. And unfortunately, Unger is ambiguous in his treatment of ultra-theory.106 He suspects that it may collapse into positivist social scienceor a “negativistic, existentialist version of modernism”, but he ultimatelyrefuses to condemn it as incoherent.107 This is a mistake. The ultra-theoristis in the same position as the extreme sceptic who denies that any view ofsociety could ever have normative authority and Unger steadfastly refusesto compromise with the latter stance. He distinguishes between “involve-ment in the controversy over alternative views of human empowermentand the paralysed outsiderdom of the unqualified sceptic”.108 Similarly,he denies the thesis of radical indeterminacy109 because “[i]t tempts theradical indeterminist into an intellectual and political desert, and aban-

100 Social Theory, op. cit., 9. See also 39.101 For a similar view, albeit expressed in different language, see J.W. Singer, “ThePlayer and the Cards: Nihilism and Legal Theory”,Yale Law Journal94 (1984), 1–70.Cf. J.H. Harris, “Unger’s Critique of Formalism in Legal Reasoning: Hero, Hercules, andHumdrum”,Modern Law Review52 (1989), 42–63, at 62. See also Ewald, op. cit., 712.102 Social Theory, op. cit., 149–150.103 Ibid., 137: “[S]cepticism about the script seems, inevitably, to result in scepticismtoutcourt.”104 See ibid., 165–169.105 Ibid., 149. See also 166.106 See ibid., 151, 166, 169. Cf. Hutchinson, op. cit., 280.107 See ibid., 169. See also 151.108 False Necessity, op. cit., 354. See alsoCritical Legal Studies, op. cit., 96. Cf. Finnis,op. cit., 23.109 SeeLegal Analysis, op. cit., 120–122. At 121, Unger states that “[t]he radicalisationof indeterminacy is . . . a mistake” and “a dead-end”. This raises questions about the rela-tionship between Unger and other critical legal scholars, as it is normally assumed thatone of the tenets of CLS is the indeterminate nature of law: on this, see, for example,the useful summary of core CLS beliefs in D.A. Price, “Taking Rights Cynically: AReview of Critical Legal Studies”,Cambridge Law Journal48 (1989), 271–301. Forfurther remarks on Unger and CLS, see, for example, A. Altman,Critical Legal Studies:A Liberal Critique (Princeton: Princeton University Press, 1990), 18–21; A. Hunt, “TheTheory of Critical Legal Studies”,Oxford Journal of Legal Studies6 (1986), 1–45; D.N.


dons him there alone, disoriented, disarmed, and, at last, corrupted – bypowerlessness”.110 The proponents of this view seem to believe that, byproclaiming the indeterminacy of political decisions, they can deny theirimportance. But, for Unger, “law can be something, and . . . it matters whatit is”.111

Therefore, in a sense, Unger looks both ways. Against deep-logicsocial theory, he disputes the view that normative judgment must obey theimperatives of a pre-existing social script. And against the nihilism andextreme scepticism of indeterminacy theorists (and, it would seem, ultra-theorists) he denies that this reduces political judgment to arbitrariness.112

For Unger, to criticise the idea that society has a natural order is not toreject the possibility of prescriptive judgment:113 it is merely to deny thatsome views have a privileged status over others. Thus, Unger does notcontradict himself in the way that Hutchinson and Monahan allege. Hiscritique of objectivism concerns metaphysics, whereas his programme is amatter of politics.

This interpretation of Unger has a rather surprising consequence. Itbrings his views on legal reasoning closer, in one sense, to those articu-lated by his ‘rival’, Ronald Dworkin.114 Unger, of course, would deny thisbecause, so far as he is concerned, Dworkin is a leading representative ofthe school of rationalising legal analysis, and therefore an objectivist. But,in this regard, Unger misunderstands Dworkin’s work. The latter’s ‘rightanswer thesis’ is not a metaphysical claim about the existence of truthin legal materials. Rather, for Dworkin, “law as integrity” is concernedwith imposing a particular set of values upon existing legal materials.115

Like Unger, he denies that prescriptive judgments must be tied to factsin the world in order to be authoritative.116 Indeed, he goes as far as to

MacCormick, “Reconstruction after Deconstruction: A Response to CLS”,Oxford Journalof Legal Studies10 (1990), 539–558, at 553.110 Ibid., 121.111 Ibid., 122. Cf. Harris, op. cit., 62.112 SeeFalse Necessity, op. cit., 65–66.113 On this, seeCritical Legal Studies, op. cit., 97.114 Cf. Harris, op. cit., 53.115 See, for example, R. Dworkin,Law’s Empire(London: Fontana, 1986), especiallychapters two, six and seven.116 See R. Dworkin,Taking Rights Seriously(London: Duckworth, 1978), chapter 13 andappendix; R. Dworkin, “A Reply by Ronald Dworkin”, inRonald Dworkin and Contem-porary Jurisprudence, ed. M. Cohen (London: Duckworth, 1984), 247–300, at 275–281;R. Dworkin, A Matter of Principle(Cambridge, Mass: Harvard University Press, 1985),especially chapters five and seven; R. Dworkin,Law’s Empire, op. cit., 78–86; and R.Dworkin, “Objectivity and Truth: You’d Better Believe It”,Philosophy and Public Affairs25 (1996), 87–139.

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contend that “the whole issue of objectivity, which so dominates contem-porary theory in these areas, is a kind of fake. We should stick to ourknitting.”117 Although Unger would seem to take the challenge of necessi-tarian theory more seriously – one suspects too seriously118 – both writersend up denying the relevance of metaphysics to discussions about socialvalues. They both believe that, to defend the right answer, one can adduceonly reasons stating what ought to be done. And they share the view that,ultimately, this is simply a matter of commitment.119

In this way, Dworkin and Unger can be seen to inhabit the same theoret-ical plateau. The difference between them is, in Unger’s language, purelypolitical. Dworkin, however, may shy away from this statement for tworeasons. First, he may argue that, in relation to legal reasoning, he isconcerned with law rather than politics, whereas Unger ignores law forthe sake of politics. But – as demonstrated above – Unger works withinexisting legal doctrine in order to achieve his political vision of negativecapability through democratic experimentalism. Dworkin does likewise:he imposes his view of law as integrity on the diverse mass of legal mate-rials.120 Second, even if Dworkin accepts this, he may object that he isconcerned with moral principles rather than politics. However, given thatUnger’s definition of politics includes “the conflict over the terms of ourpractical and passionate relations to one another”,121 Dworkin’s accountcan safely be said to be political in an Ungerian sense. The debate on legalreasoning between Dworkin and Unger thus comes down to a question ofcompeting political arguments. Put straightforwardly: is Unger’s view ofempowered democracy more appealing than Dworkin’s of law as integrity?This paper concludes with some comments concerning the attraction ofUnger’s programme.

117 Dworkin, A Matter of Principle, op. cit., 172. See alsoLaw’s Empire, op. cit., 86:“this preliminary dance of scepticism is silly and wasteful; it neither adds to nor subtractsfrom the business at hand”.118 According to Herzog, “[a]ntinecessitarian explanation, while an imposing mouthful,is in place already”: see D. Herzog, “Rummaging Through the Emperor’s Wardrobe”,Michigan Law Review86 (1988), 1434–1449, at 1441. Indeed, Unger comes close toadmitting his target is a bit of a straw man: seeFalse Necessity, op. cit., 597.119 See ibid., 365; Dworkin, “Objectivity and Truth”, op. cit., 118. Cf. Singer, op. cit.,101.120 For Unger “fit” is a mere threshold requirement in the sense that his particular politicalvision need only find a toehold within the existing legal materials in order to stimulatereform, whereas for Dworkin “fit” is a political value in the same way as “justification”:see Dworkin,Law’s Empire, op. cit., 67. Law as integrity results when both of theseelements combine in a “reflective equilibrium”: see Dworkin,Taking Rights Seriously, op.cit., chapter six. Cf. Harris, op. cit., 54.121 Social Theory, op. cit., 10. See alsoFalse Necessity, op. cit., 44.


CONCLUSION

Unger’s work has been defended against two misleading criticisms. Hisrealistic vision has been retrieved. However, it is appropriate to end with atentative objection to Unger’s vision.

Unger argues that, if the current legal materials are appropriatelypredisposed, a case should always be decided in a way that benefits demo-cratic experimentalism and increases negative capability. But would lifein an empowered democracy would be worth living? Is the possibility ofchange valuable? Many commentators have suggested that Unger’s visionof a society oriented towards the production of negative capability is farfrom attractive. For instance, some take issue with his implicit rejection oflifestyles grounded in routine and custom.122 As Hutchinson puts it:

[Q]uiet moments alone or with loved ones are neither a respite from social struggle nora capitulation to political resignation. They can be that, but they can be much more aswell. Such occasions are to be cherished in themselves. They are life, not a break fromit. Unger’s vision of the empowered life is both too heroic and too tragic for the living ofeveryday life. Is it not as noble and fulfilling to meditate on the mountain top as it is to beon the urban cutting edge? Is not domesticity as much a virtue as militancy?123

Moreover, other commentators point out that the risks involved in creatingan increasingly experimental type of society are likely to affect adverselyand disproportionately the weaker members of that society.124 These criti-cisms would seem to have a point. Negative capability may be valuable, butit ought never to be the sole value in life.125 Equally, it should not be theonly ideal guiding legal decision-making. This does not mean, however,that one must side with Dworkin against Unger. Dworkin’s view of lawas integrity is dogmatic in a similar way. Just as Unger seems to havea monistic conception of value, so Dworkin, by stipulating that politicalvalues must form a coherent whole, imposes unnecessary reductions onpolitical thought. A different view of legal reasoning is required. Onealternative sees political thought as consisting of many different values.

This alternative view holds that, when deciding a particular legal case,rather than automatically resorting to one specific value or set of compat-ible values, one ought to take account of the diversity of political thought.The numerous prescriptive categories – such as equality, security, freedom,

122 See Kymlicka, op. cit., 272; Yack, op. cit., 1976; and Ewald, op. cit., 738.123 Hutchinson, op. cit., 288–289. See also Herzog, op. cit., 1444–1445.124 See Finnis, op. cit., 39; Price, op. cit., 298; and Kymlicka, op. cit., 276. Unger countersthis criticism to some extent with his notion of “immunity rights”: seeFalse Necessity,op. cit., 524–530. There is, however, uncertainty over the extent to which these rights arecompatible with the rest of Unger’s programme: on this, see Price, ibid., 298.125 As Hutchinson puts it (op. cit., 286): “Even soaring eagles must rest sometimes.”

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fraternity and negative capability – which constitute the fragmented realmof value ought to be considered. In other words, one ought to rejectdogmatism in favour of pluralism. There is no one value which exhaustspolitical possibilities. Isaiah Berlin puts the point well:

[T]he belief that some single formula can in principle be found whereby all the diverseends of men can be harmoniously realised is demonstrably false. If, as I believe, the endsof men are many, and not all of them are in principle compatible with each other, then thepossibility of conflict – and of tragedy – can never wholly be eliminated from human life,either personal or social.126

However, not every political value can be considered in any one case.As with the theories of Dworkin and Unger, some ideals are not legallyrelevant. Only those which connect to existing legal materials can beconsidered. Then, faced with various possible legal solutions tied toconflicting political views, one must decide between them. One – albeitrather underdeveloped – way of characterising this decision is to say thatjudgment must be exercised. One cannot appeal to an overriding value tosolve the case; such a thing does not exist. One must simply use one’sjudgment, always taking into account the circumstances of the case. Judg-ment is all there is. And if after the case someone asks why it was decidedin a particular way one will not be able to give a justification. As in thethought of David Hume, judgment exists beyond rational argument andthus cannot be fully articulated.127 It is imagination, not reason, which iscentral to the formation of judgment and this has the consequence, as Baierhas pointed out, that it “resists full intellectual analysis”.128 But this is notto say that judgment is arbitrary. Rather, it is constrained by the socialcontext in which it occurs. As Livingston has said, the Humean notion ofjudgment “is parasitic upon an unreflective order variously described ashabit, custom, convention, prejudice, and common life”.129

Unger may object that this skeletal account of legal reasoning is equiv-alent to the thesis of radical indeterminacy considered above. But it is not.

126 I. Berlin, Four Essays on Liberty(Oxford: Oxford University Press, 1969), 169.See also T. Nagel, “The Fragmentation of Value” in hisMortal Questions(Cambridge:Cambridge University Press, 1979); B. Williams, “Conflicts of Values” in hisMoral Luck(Cambridge: Cambridge University Press, 1981).127 On Hume’s theory of judgment, see D. Miller,Philosophy and Ideology in Hume’sPolitical Thought (Oxford: Oxford University Press, 1981); A.C. Baier,A Progress ofSentiments: Reflections on Hume’s Treatise(Cambridge, Mass: Harvard University Press,1991), especially 181–182. Cf. Singer, op. cit.128 Op. cit., 281.129 D.W. Livingston, “On Hume’s Conservatism”,Hume Studies21 (1995), 151–164,at 155. For a more detailed account of this argument, see D.W. Livingston,Hume’sPhilosophy of Common Life(Chicago: University of Chicago Press, 1984).


To stress the conflictual nature of political thought is not to say that there isno right answer in a particular case. Given the specific facts of the case andthe current state of the legal materials, there is a right answer. Just becausethat answer cannot be explained rationally does not mean that it does notexist. Judgment can be exercised well or it can be exercised badly.

Alternatively, Unger may argue that this view denies the importanceof formative social structures. In other words, just like positivist socialscience, it focuses exclusively on individual events without placing them incontext. But this account does believe in such structures. It is simply that itperceives them to be characterised by conflicting ideas about society ratherthan by one dominant ideology. Unger may respond to this by contendingthat structures could never be legitimate on this basis. But there is noobvious reason why the framing ideas of society – including law – mustconstitute a single social vision, even if that were possible.130

There is one final objection which might be raised against the accountof legal analysis outlined here. It may be suggested that this alternativehas been merely asserted, that more argument is necessary before it can beconcluded that Unger’s political vision is defective. This objection is wellput. However, the alternative version of legal reasoning cannot be justifiedhere. It is work for another occasion. In this respect, it may be concludedthat the defence of Unger’s project from two misplaced attacks is onlyprovisional. His realistic vision may be flawed after all.

Centre for Law & SocietyUniversity of [email protected]

130 See Price, op. cit., 286.

a realistic vision? roberto unger on law and politics

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