Conflict Normalised

Abstract

The argument that follows is the most difficult one to level against the republicans, because it aims to confront the republicans’most inspired moment, their debt to Critical Legal Studies, particularly that to Roberto Unger. Unger’s is a powerful version of the law-as-politics position, in so far as he vests in law the possibility of pursuing radical politics and of countering the ‘false necessity’ of the confinement of our political vision within rigid institutional assumptions. What puts him in the broad republican category here, is that he gives his politics legal leverage. Nothing, says Unger, compels us to reduce the political to the exclusive alternatives of ‘tinkering’ with the institutions or revolting against them.¹ This disjunction blinkers the very real possibility that the political may draw its inspiration from the institutions’- significantly here law’s - own powerful imagination. Unger’s work in legal and social theory is the constant endeavour to do just that, to tap that imagination. This argument has for some time now been expounded by the Critical Legal School that seeks to upset the legal system’s tendency to assimilate the new to the old, its overwhelming of the innovative, its tendency to rationalise the incongruent into coherence, thus conspiring to the impoverishment of legal analysis through its foreclosure of broader conflict. In contrast, Critical Legal Analysis is geared to restoring ‘deviations and contradictions as intellectual and political opportunities rather than threats.’² To resist the severing of legal analysis from broader conflicts, it will draw from the system itself to reveal suppressed possibilities by showing legal dogma to be incoherent, then playing up the ‘dangerous supplements’. Where the law exhibits the overwhelming tendency to assimilate the ‘deviant’ case within already existing schemata of processing it, the critical scholar will emphasise alternative possibilities, new relevancies that upset settled patterns. There is a strong continuity in Unger’s accounts of how this strategy of ‘dis-entrenchment’ and ‘re-construction’ is envisaged, going back to at least his CLS manifesto, ³ and variably described as ‘deviationist doctrine’,⁴ ‘negative capability’,⁵ and ‘mapping and criticism’.⁶ In each case, significantly, the same political logic of disruption draws from within the institution: as Unger put it in the Chorley lecture,⁷ his Critical Legal Theory understands the institution as law but undertakes it as politics.

Where theorists in earlier times were haunted by the fragility of order, [today theory] appears to suffer from a surfeit of order. And ultimately, ofcourse, the heroic metatheorist will suffer the fate; his agon will be routinized. (Wolin)