Unger on Contemporary Styles of Legal Analysis.

• Date: 01 October 2018
• Author: Ligertwood, Julian

Prominent legal and social theorist, Roberto Unger argues in his work that a generalizing and rationalizing style of legal analysis that Unger calls the 'reasoned elaboration of law' became the dominant, 'canonical' form of legal analysis in western legal cultures in the later half of the 20th century and still retains an influence today. (1) According to Unger, the influence of the reasoned elaboration of law diminished in the early 21st century and two legal analytic approaches that Unger identifies as 'retro doctrinalism' and 'shrunken Benthamism' have filled the space of contemporary legal thought. (2) These two relatively new legal analytical approaches are discussed in the final part of this chapter along with a much older analytic practice. But first, the analytic approach to law identified by Unger as 'reasoned elaboration' or 'RLA' is discussed, followed by a critique of that approach.

The Reasoned Elaboration of Law

For Unger a major continuing methodological influence in legal thought is the attempt to use public law:

especially constitutional law, the law of supranational organisations such as the European Union, and the international law of human rights--as both the ultimate constraint on political struggle and the highest expression of our political ideals. Its characteristic product is the development of public law doctrine as the instrument of a high handed and high minded minimalism: the defence of fundamental rights as minimums that all political forces must respect. (3) The preferred method of this approach, Unger argues, is a 'transcendental formalism' which requires a twofold defence and development of a system of rights. An assumption of this method is that it can be defended or validated by 'constitutional documents, understandings and traditions', but the other transcendental assumption is that these constitutional documents, understandings and traditions define and uphold the presupposed rights of a free society or a democratic state. On this view, it is the responsibility of the jurist to take care of these fundamental rights. (4)

Unger points out that the 'chief home' of this high handed and high minded minimalism, particularly in the United States, has been Constitutional Law, the field of law in which both doctrinal formalism (in the 19th century) and reasoned elaboration (in the 20th century) 'showed their most aggressive face'. That is, for Unger, the method of reasoned elaboration found support in this older, minimalist approach to constitutional law, both practices sharing the following characteristics:

The attempt to put the best face on the established institutional regime, the disposition to treat it as the definitive template for the advancement of our ideals and the fulfilment of our interests, and the premise that a higher reason was to be found in what history had already produced, if only one brought to the task the right conceptual equipment. It was as if the method of reasoned elaboration simply generalised attitudes that had long been ascendant in dealing with the Constitution. (5) Reasoned elaboration or 'rationalising legal analysis' as Unger has referred to this analytic practice (6), is then succinctly defined by Unger as the retrospective rationalisation of law in the language of impersonal policy and principle. Unger expands on the method of rationalising legal analysis in the following terms:

Rationalizing legal analysis is a way of representing extended pieces of law as expressions, albeit flawed expressions, of connected sets of policies and principles. It is a self-consciously purposive mode of discourse, recognizing that imputed purpose shapes the interpretive development of law. Its primary distinction, however, is to see policies of collective welfare and principles of moral and political right as the proper content of these guiding purposes. The generalizing and idealizing discourse of policy and principle interprets law by making sense of it as a purposive social enterprise that reaches toward comprehensive schemes of welfare and right. Through rational reconstruction, entering cumulatively and deeply into the content of law, we come to understand pieces of law as fragments of an intelligible plan of social life. (7) For Unger, rationalising legal analysis (herein 'RLA') can be seen to have four main characteristics. First, legal analysis is purposive, that is, it assumes that we can only interpret the law by first ascribing a purpose to it. Thus Unger claims that the practitioner of RLA takes this raw material and searches for elements that may plausibly be represented as social or moral ideals, separating them 'from the dross of self-dealing' with which they are commingled. The ideals discovered are not thought of as corresponding to the intentions of the lawmakers. The lawmakers' intentions are sufficiently represented by the melange of motives referred to a moment ago. The aim of the analysis is to put a good face on this messy legal reality so as to guide its future development, not flatter its producers. (8)

Ascribing purpose to the legal materials is necessary, according to the rationalising legal analyst because it is no longer credible, or at least it would be highly controversial today, to view legal analysis as a 'naive positivist' would, that is, as the mere the application of the literal or plain meaning of words without regard to ideals latent in a particular piece of law. (9) Through the practice of RLA, by attributing purpose to a piece of law, the interpretation of that particular piece of law can then be explained in the face of disagreement. Even where there is little or no disagreement as to the meaning or application of a piece of law to a particular case (a situation described by Hart as an easy case) the proponent of RLA will tacitly attribute purpose to the piece of law, however the purpose will only become explicit in the face of controversy over the proper or best interpretation of a piece of law. (10)

The second major characteristic assumption of RLA is that legal analysis is contextual., that is, legal analysis occurs within the context of the norms and attitudes of the particular community. For Unger, the ascription of purpose takes place on the basis of the engagement of the interpreters in a community of discourse that is also a form of life. This engagement then takes place on two levels. First at the level of the professional tradition, the legal experts versed in a legal doctrinal discourse. These experts act as insiders, as active participants in the development of the discourse of RLA. Unger therefore sees the jurist as acting within a collective discourse that develops in historical time and prevails over the individual mind acting within the experience of biographical time. The second level of contextual engagement is engagement at the level of the form of social life, in real society, in real history. As Unger puts it, 'Just as a theologian always speaks with regard to a particular religion, a particular community faith, so a jurist always speaks with regard to a particular legal system or legal tradition and the real societies with which it is connected.' (11) As a result of this contextual engagement in the community discourse and the form of social life, Unger suggests that legal analysis becomes a radically different enterprise to that of social science, which does not adopt this internal perspective.

These first two assumptions of RLA, that legal analysis is both purposive and contextual are consonant with the traditional common law practice of analogical reasoning. (12) It is in the next two aspects of the method of RLA that it distinguishes itself from analogical reasoning and it is these following characteristics of RLA that are problematic for Unger. The third characteristic assumption of RLA is that legal analysis is generalising, which means that while particular acts of interpretation may be localised or episodic, the ambition of the practice over time is to make sense of the law as a whole. Therefore any policy or principle, in order to be endorsed or legitimated through the practice of RLA, must be seen to converge or cohere with a larger set of policies and principles. The set of policies and principles that constitute the law are supposed to represent a 'flawed, fragmentary approximation to an 'intelligible form of social life.' (13) Finally, the practice of RLA is idealising so that any policy or principle articulated by the legal analyst must not only provide an explanation of how a piece of law coheres with most of the larger body of law, but according to RLA the legal analyst must then be able to justify most of that larger body of law. This idealising characteristic of RLA takes the characteristic form of the use of the vocabulary of impersonal policy and principle.

To engage in the practice of RLA the legal analyst must not be an outsider critic of the legal system as assumed by Bentham's censorial jurisprudence, but must act as an insider participant in this reiterative practice of RLA. As Unger puts it, 'The repeated practice of policy oriented and principle based analysis should, so the most ambitious and influential views of the practice teach, lead to ever higher standards of generality, coherence, clarity and the rational representation of law.' (14) Thus the practice of RLA strives through a cumulative approach for a higher account of the law so that all of the law can be seen as moving towards intelligible, comprehensive schemes of the various areas of social life such as the market economy, free civil society or political democracy. These ideal representations then provide the source of the ideas that are expressed in the language of impersonal policy and principle, that is, they are seen to already exist to some extent in the legal materials, the analyst is not permitted to make them up. However, neither are they present in a 'single, unambiguous form':

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