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Yale Law Journal,
April 1988, 97 Yale L.J. 665
Unger's
Philosophy: A Critical Legal Study
By
William Ewald
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."
If anyone in CLS can claim to have undermined the central ideas of modern legal
thought, that person is Professor Unger. There is widespread agreement that he
is the philosophical leader of CLS and that his most influential work is the
critique of liberalism in his first book, Knowledge and Politics.
His books on political and legal theory 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 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." These books received a number 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 fundamental 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.
More recently, Unger has published three volumes, forming the first part of Politics:
A Work in Constructive Social Theory. In this work, too, Unger makes grand
claims: He says he aims to provide a new theoretical vision for the left -- a
radical alternative to both Marxism and social democracy. Having noticed that
radical social theory was "an instance of illusion passing into
prejudice," he wanted to write a book "to set things straight."
Again, his followers have been supportive. One contributor to the Northwestern
University Law Review's Symposium on Politics, while noting that
"neither Politics nor theory nor the human intellect 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."
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. Next I turn to his essay on The Critical Legal Studies
Movement, and say something about the relationship of his philosophy to law
and legal theory. Finally, I turn to the concrete political recommendations of Politics
-- specifically, to Unger's theory of cultural revolution. These recommendations
seem to me deeply troubling, for reasons I shall explain in due course. If my
analysis is correct, there is a linear progression from the philosophy, through
the law, to the politics, and the seeds of Unger's recent political views are
already to be found in his early philosophy.
Throughout this discussion, I shall try to be intelligible to a general
audience, even if this means explaining points that will be obvious to
professional philosophers. And I shall try not to presuppose any previous
acquaintance with Unger's writings, even if this means summarizing arguments
that will be familiar to his readers. My goal is to obtain a clear view of the
"sheer breadth of Unger's knowledge and the unrelenting force of his
analysis." Neither, I argue, is as great as his followers believe.
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