By Roberto Mangabeira Unger
ISBN-10: 0029328802
ISBN-13: 9780029328804
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Extra resources for Law in modern society : toward a criticism of social theory
Example text
The next stage of my argument will be to suggest, in a speculative fashion, the historical conditions for the emer gence of each of the main types of law. This analysis will indicate some relationships between culture and organization in different forms of social life, and it will lead up to the issue of how and why postfeudal Europe developed its unique kind of legal order. The answer to this question might contribute to an understanding of the peculiar identity of modern West ern civilization.
So the paradox of rules to which the consensus theory leads is just a more particular manifestation of this theory's inability to do justice to the precariousness of consensus in society and to explain how latent disagreement can break out into open defiance and struggle. We are now in a position to understand the third criti cism, for it is only a transposition of the two previous ob jec tions from a descriptive to a normative key. It accuses the doctrine of legitimacy of an ineradicable bias toward collectiv ism, a bias built into the descriptive outlook of the theory itself.
All rules can then do is to clarify the proper standards of conduct where the shared values of the group fall short in their concreteness or coherence and to ensure their enforcement when these values are deficient on the scales of extension and intensity. But the paradox remains. Rules are said to be primarily expressions of common values, yet it is precisely some gap, weakness, or imprecision in the hold of these values that makes rules indispensable. Laws are the creatures of, and the antidotes to, conflict, which is the very aspect of social life the doctrine of legitimacy leaves unexplained.