Law in Modern Society: Toward a Criticism of Social Theory is a 1976 book by philosopher and politician Roberto Mangabeira Unger. In the book, Unger uses the rise and decline of the rule of law as a vehicle to explore certain problems in social theory. According to Unger, problems that were central concerns of classical social theorists like Marx, Durkheim, and Weber—the problems of explanation, order, and modernity—remain unsolved. Unger contends that the failure of classical social theory to solve these dilemmas can be traced to the way in which it asserted its independence from the ancient political philosophers, namely in its denial of a supra-historical human nature and in its insistence upon the contrast of fact and value. Unger argues that a radical reorientation of social theory is needed to solve the problems it faces. "To carry out its own program," Unger writes, "social theory must destroy itself." The rise and decline of the rule of law, and the dilemmas of social theory, converge in the need to be able to compare and criticize different forms of society, in order to be able to more effectively submit the organization of society to the human will.
Overview
Chapter 1: The Predicament of Social Theory
Unger opens Law in Modern Society by connecting the study of law to the unsolved problems of social theory. Social theory is the tradition originating in the writings of Montesquieu and culminating with the work of Marx, Durkheim, and Weber. In Unger's view, classic social theory as represented by these thinkers is marked by an insistence on the distinction between fact and value, description and evaluation, and also by a denial of a unitary human nature. Unger contrasts classic social theory with the political philosophy of the ancients, who did not recognize as sharp a distinction between fact and value, and maintained that there is a universal human nature that exists in all times and places.
The study of law affords a vantage point from which to explore three unsolved problems of social theory, according to Unger. The first, the problem of method, is that the prevailing methodological approaches to social study are inadequate. The rationalist approach (as seen in the works of economists) and the historicist approach (which accepts the function of cause and effect but not logical entailment) both invite deterministic social explanations. Unger contends that we need a third method, one that is generalizing, and yet also open to rich historical particularity while not falling into deterministic explanations.
The second problem is the problem of social order. How do we account for the existence of a social order? Classical social theory is represented by a struggle between the doctrines of instrumentalism (or private interest) versus legitimacy (or consensus). The legitimacy approach sees rules as manifestations of the shared values of a group. The instrumentalist approach sees society as made up of many divergent individual wills, and rules serve the instrumental purpose of helping the members of society achieve their privately chosen aims in the long run. Utilitarianism is an example of an instrumentalist approach. According to Unger, we need to go beyond the partial truths expressed in each doctrine.
The third unsolved problem of social theory is the problem of modernity. What marks the experience of modernity? What is its place in world history? What is the relationship between ideology and actuality in modern life? Our social theory must be able to reconcile the subjective experience of society with its objective meaning. As history transpires, new puzzles are added to the experience of studying modernity. A large part of the problem of modernity is the difficulty of comparing modern forms of social life: modern Western society with its forebears, and different forms of contemporary society (traditional, revolutionary socialist, postliberal) among themselves.
The program of classic social theory has value, according to Unger—namely in allowing us to study human beings as they are rather than as they ought to be, and in helping us to inquire into how each society shapes conduct and consciousness of its members. These classical social theorists sought to create a body of objective knowledge of society that would not be at the mercy of metaphysical speculation or political controversy, and up to a point, they succeeded. But Unger concludes that the problems of social theory cannot be resolved unless the truths of classic social theory are reconciled with the insights of older political philosophy. We need a general doctrine of human nature.
Chapter 2: Law and the Forms of Society
In this chapter Unger addresses the varieties of law and explores the conditions under which each of them develops. Customary/interactional law is neither public nor positive, and consists of implicit standards of conduct, not formulated rules. Under a system of customary and interactional law, customs are characteristically inarticulate. Bureaucratic/regulatory law is public and positive, and emerges with the division of state and society. A legal order is a legal system that is committed to being general and autonomous, in addition to being public and positive.
From this discussion, he draws conclusions about the issue of social order as it relates to the development of law. Unger explains how disintegration of community is accompanied by a trend toward increasing specialization in a society's division of labor, a trend that is responsible for the separation of state and society. This process erodes the basis for an inclusive set of shared beliefs. The legal order emerges with interest group pluralism, as well as reliance on higher divine or universal law as standard for justifying and criticizing a state's positive law. The rule of law is a response to the decline of order in society. But when the belief in higher law declines, the legal order is threatened. In contemporary history, the natural rights synthesis that underlies the legal order ideal has been undone, with the result that the coherence of the rule of law ideal is compromised.
Chapter 3: Law and Modernity
In this chapter, Unger traces the rise and decline of the rule of law in society. He begins by setting out a preliminary framework for the comparison of societies, and uses this framework to examine tribal society, liberal society, and aristocratic society. Unger's inquiry into these types of society revolves around three questions: What is the nature of the contrast between insiders and outsiders? How are insiders drawn together in significant groups and what is the quality of their encounters with strangers? And, finally, how individuals conceive of the place of the ideal—do they have a concept of the right or the good that transcends the natural or social world?
Unger concludes that tribal society displays the starkest possible contrast between insiders and outsiders; outsiders are not regarded as human beings with whom the insiders share anything significant in common. There is a paucity of significant groups in tribal society. And there is little conception of a good or right that towers over the immanent reality of daily life or the natural world. The important insight, for Unger, is that tribal society is an extremely cohesive social world, where there is deep agreement about fundamental social questions, profound distrust of strangers, and no recognition of overarching ideals against which the quotidian life or nature can be compared.
At the other extreme, liberal society is one in which the contrast between insiders and outsiders is softened by the fact that each individual belongs to a large number of significant groups. Because members of liberal society become accustomed to other people being both insiders and outsiders in different contexts, the hostility of tribal society for the stranger is replaced, in liberal society, by ideals of impersonal respect and formal equality. People will abide by relatively stable standards of social order because it is to their advantage to do so, not because they observe identical conceptions of the true and the good. In liberal society, a concept of the right and the good transcends the reality of daily life and the natural world.
Unger views aristocratic society as a synthesis of tribal and liberal societies. Aristocratic society unites universalism and particularism. In aristocratic society, significant social groups are experienced as steps on a hierarchic ladder. Each individual belongs to a specific group, his estate, which confers on him a range of entitlements and obligations and predetermine his outlook on the world. These strata are sharply divided from each other and are decisive in determining the quality of the individual's life. Aristocratic society's view of the relationship between the ideal and the actual occupies an intermediate position between the views of tribal and liberal society. In aristocratic society, there is an intense oscillation between a tendency to sanctify existing social arrangements and the tendency to oppose them to a higher heavenly perfection.
Having set out a rudimentary grammar for the comparison of societies, Unger traces the emergence and decline of the liberal state and the rule of law (which Unger describes as the soul of liberal society).
Liberal society developed out of aristocratic society, namely the society of estates (Standestaat), which was an intermediary system between feudal society and the modern liberal state. The law of the Standestaat was a forerunner to the modern legal system, and consisted of an area of royal discretion (matters falling under the prince's prerogative to keep the peace) and a higher law (matters pertaining to the privileges and obligations of estates of the realm). The elements that make up a modern legal order—positiveness, publicity, generality and autonomy—were not present, but as the formerly neat line between royal prerogatives and the law of estates faded away, the prince was increasingly held to standards of generality and autonomy, and estate privileges acquired a public and positive character. The confinement of royal power by the fundamental law of the Standestaat was supported by a belief in a God-given natural order.
The liberal state—with its multiplicity of significant groups, the disappearance of a sharp distinction between insiders and outsiders, and a stark division between the ideal and the actual—faced two questions with increasing urgency: how can there be consensus without widespread agreement about the good, and how can we distinguish legitimate from illegitimate uses of power in the face of dissolving hierarchy and moral confusion? The rule of law, which attempted to guarantee the impersonality of power, was a way of dealing with these urgent questions.
The rule of law has two major premises—that the most significant forms of power can be concentrated in government, and that power can be effectively constrained by rules. But Unger contends that these premises are largely fictitious. They are undermined by the awareness that individuals are most vulnerable to hierarchies of the family, the workplace, and the market that are largely beyond the reach of the legal system, and also that rules can never make power truly impersonal and impartial—administrators and judges will always decide among competing sets of beliefs in rendering a decision.