What Should Legal Analysis Become?

• Author: Kar, Robin Bradley

By Roberto Mangabeira Unger.(*) London and New York: Verso, 1996. Pp. 198. $17.00.

When Justice Holmes warned his contemporaries that the Fourteenth Amendment "does not enact Mr. Herbert Spencer's Social Statics,"(1) he was chiding the Court for reading laissez-faire economics into the Constitution, and his comment reflected two anxieties that recur perennially in American legal thought. His comment indicated, first, a methodological worry about the difficulties inherent in interpreting the law "correctly," an issue that has been addressed explicitly by theorists such as Ronald Dworkin, H.L.A. Hart, Karl Llewellyn, and Cass R. Sunstein.(2) Holmes's comment also reflected political concern about the legitimacy of interpretations that extend beyond the meanings voiced by the People.(3) Naturally, in a democratic nation such as ours, which views itself as governed by written laws rather than powerful people, these two issues are intimately linked. Together, they help frame the question: How should we interpret the law?

In What Should Legal Analysis Become?, Roberto Mangabeira Unger sets forth his mature view on this question. Unger maintains that modern practices of legal interpretation have become dominated by what he calls "rationalizing legal analysis" (p. 38), a form of analysis under which judges interpret independent fragments of the law as expressing a coherent, general system of purposes (p. 36). In the critical portions of his book, Unger argues that we should abandon this practice for two main reasons. First, he claims that the practice allows judges to impute general "policies of collective welfare and principles of moral and political right" into their readings of the law (p. 36), thereby suppressing vital elements of our democratic compromises (p. 40) and transferring the power to determine the basic terms of social life from the People to an elite class of legal technicians (p. 72). Second, Unger claims that the practice fetishizes our present institutional arrangements (p. 39), thus frustrating the sorts of innovations that would give genuine meaning to the People's legal mandates (p. 39).

In the more constructive portions of his book, Unger contends that we should replace rationalizing legal analysis with a rather different practice. According to this practice, we should begin by "mapping" the highly pluralistic institutions and ideals embodied in the law through a practice of context-bound analogical reasoning (p. 130). We should then "criticize" our institutions by imagining variants that might better enact these newly "mapped" purposes, and by presenting each option to a highly mobilized citizenry for approval (pp. 130-31, 182). Rather than beginning with one set of coherent purposes and ascribing it to the law as a whole, however, mapping and criticism should proceed as a cyclical procedure that rejects general theoretical requirements and replaces them with a more detailed understanding of the law's many, open-ended aims (pp. 130-31). Unger thus believes that legal analysis should become a conversation between legal technicians and the larger civic body. This conversation should not only inform the citizenry about its legal present, but also invite a process of ongoing institutional revision, by articulating alternative ways to enact those legislative commitments in the future (p. 130).

As shown below, Unger's constructive work is inconsistent with his negative criticisms because his affirmative work depends on two general conceptions, one of democracy and one of human nature. Given the strength of his criticisms, Unger's entire work thus provides us with a useful moral about the dangers inherent in interpreting the law through the lens of theory.

Before launching into Unger's arguments, however, an initial problem must be eliminated. Unger claims he is not a "radical indeterminist"--that is, he is not one who believes judges can interpret democratic expressions in any way they want without diverging from the original text (pp. 120-21). Unger also claims he is...