Legal Analysis and the Perversions of Theory
6 Pages Posted: 17 Sep 2006 Last revised: 7 Jun 2016
Date Written: 1997
In What Should Legal Analysis Become?, one of the central figures in the critical legal studies movement - Roberto Unger - weighs in on the debate over how legal analysis should proceed if it is to maintain both accuracy and democratic legitimacy. He advances important and novel views on this topic, which are fundamentally distinct from more familiar views like originalism (Scalia), interpretivism (Dworkin), and ordinary judicial practice. This piece reviews Unger's book, with two main goals. First, it seeks to outline in clear and concise terms Unger's main views, as an aid to those interested in understanding the critical legal studies movement. Second, it aims to subject the views to critical inquiry, as an aid to those interested in querying the cogency of Unger's proposals.
One of Unger's main stalking horses is "rationalizing legal analysis," a form of analysis under which judges aim to interpret independent fragments of the law as parts of a coherent system of policies and purposes. The book's critical portions show quite adeptly that we need not advert to general theories or consistent systems of policy and purpose to understand the law or to apply it coherently. Unger's critical work also suggests that when we do advert to theory, we often repress valuable parts of our democratic compromises. The review suggests, however, that Unger's constructive proposal rests on similarly general conceptions of democracy and human nature in deriving some of Unger's proposals, and that his theory thus generates a similar democratic loss. This irony shows that Unger's proposals would be a cleaner, more legitimate, and more analytically sound proposal if it were divested of these theoretical requirements.
The review concludes that Unger's book will thus leave the next generation of legal scholars with not only a lesson but a question. It will teach them about the problems that occur when we impute general theories into the law, and it will do so in a way that simultaneously shows them just how easy it is to be lured into that net. For that very reason, it will force them to ask: At the end of the day, is it possible - or even desirable - to engage in, to elaborate, and to transmit to future generations a mode of legal analysis that escapes the perverting lens of theory?
Keywords: Unger, critical legal studies, Dworkin, Scalia, interpretation, construction, strict construction, originalism, theory, judicial activism, judicial review, meaning, democracy, democratic theory
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