Law in Modern Society
Law in Modern Society: Toward a Criticism of Social Theory is a 1976 work authored by philosopher and political figure Roberto Mangabeira Unger. In this book, Unger explores enduring challenges within social theory through the lens of the emergence and erosion of the rule of law. He critiques classical social theorists such as Marx, Durkheim, and Weber for their inability to adequately address fundamental issues like explanation, social order, and the nature of modernity. According to Unger, their failure stems from dismissing a timeless human nature and maintaining a rigid separation between facts and values. He proposes a profound transformation in social theory, arguing that for it to fulfill its own aims, it must effectively "destroy itself." The parallel between the trajectory of the rule of law and the persistent difficulties in social theory underscores the necessity to analyze and evaluate social structures critically, aiming to better harmonize societal arrangements with human agency.
Chapter 1: The Predicament of Social Theory
Unger opens by connecting the study of law with unresolved dilemmas in social theory. Tracing classical social thought from Montesquieu through Marx, Durkheim, and Weber, he highlights their shared commitment to a strict fact-value separation and rejection of an overarching human nature. This contrasts with ancient political philosophy, which embraced a consistent conception of human nature across historical periods.
He outlines three principal challenges:
The first challenge is the problem of method. Current methodologies—such as rationalist approaches favored by economists and historicist perspectives—tend toward deterministic explanations. Unger calls for an alternative approach that can generalize without sacrificing historical specificity or falling into determinism.
The second challenge involves the problem of social order. Classical theory fluctuates between two views: instrumentalism, which treats rules as means for individual self-interest, and legitimacy, which sees them as expressions of collective values. Unger contends that both viewpoints capture partial truths that must be synthesized.
The third challenge is the problem of modernity. This concerns how modernity’s historical significance is defined and how subjective social experience can be reconciled with objective meaning. Achieving meaningful comparisons among diverse modern and traditional societies remains difficult.
While recognizing the contributions of classical social theory in objectively analyzing how society shapes human behavior, Unger insists that its unresolved issues necessitate reintegrating insights from earlier political philosophy—especially a unified theory of human nature.
Chapter 2: Law and the Forms of Society
In this chapter, Unger explores various legal forms and the contexts from which they arise. He distinguishes customary or interactional law as implicit, informal, non-public, and lacking codification. In contrast, bureaucratic or regulatory law is characterized by being public, codified, and emerging from the differentiation between state institutions and society. A legal order refers to a legal system that is general in scope, autonomous in operation, publicly recognized, and formally positive.
He connects the evolution of social order with legal development, observing that the fragmentation of communities alongside increased labor specialization leads to a separation between state and society and undermines shared belief systems. The establishment of legal order coincides with pluralism among interest groups and appeals to higher principles—such as divine or universal law—to legitimize state authority. The rule of law arises as a response to social fragmentation but becomes vulnerable when faith in these higher laws diminishes. The weakening of the natural rights framework that supports legal order threatens the integrity and coherence of the rule of law itself.
Chapter 3: Law and Modernity
Unger explores the trajectory of the rule of law by examining tribal, liberal, and aristocratic societies, focusing on issues such as insider versus outsider distinctions, group affiliations, and ideals that extend beyond everyday existence.
In tribal communities, clear divisions exist between insiders and outsiders, with few significant social groups and an absence of overarching ideals. This creates a tightly knit social environment marked by strong internal consensus but suspicion toward outsiders.
Liberal societies diminish the sharp insider-outsider divide by allowing individuals to participate in multiple groups. This encourages impersonal respect and formal equality. The stability of social order in this context stems from self-interest rather than shared values. Within this framework, notions of right and good rise above ordinary experience.
Aristocratic society merges aspects of tribal and liberal forms through hierarchical social classes (estates) that define privileges and perspectives. It fluctuates between venerating established structures and aspiring to elevated ideals.
By tracing legal history, Unger demonstrates how liberal society emerged from aristocratic estates (Standestaat), where royal prerogative coexisted with estate privileges under a divinely sanctioned natural order. Over time, royal authority became constrained by principles of generality and autonomy, while estate privileges acquired a more public and positive character.
Liberal society encounters difficulties in reaching agreement without common values and in identifying legitimate authority as traditional hierarchies dissolve. The rule of law seeks to ensure impartial power but relies on questionable assumptions—that government centralizes essential powers and that rules can effectively limit authority. Unger contends these assumptions are largely illusory because family, workplace, and market hierarchies operate beyond legal control, and decision-makers inevitably interpret conflicting beliefs.
Hence, the foundational premises of the rule of law ideal appear contradicted by liberal society’s reality... Rather than a neutral arbiter, the state becomes an instrument for competing interests. Attempts to regulate power thus pursue an unattainable goal, widening the divide between idealized vision and lived experience.
These inherent tensions weaken the rule of law, paving the way for a postliberal society marked by increased governmental intrusion into previously private domains and blurred boundaries between state and society. The state’s claim to neutrality diminishes amid open-ended legislation emphasizing substantive over formal justice. Corporatism fosters powerful state-related entities that rival the state itself. Unger views welfare state institutions as assaults on legal order; corporatism undermines bureaucratic legality. He warns this dynamic contributed to the Weimar Republic’s collapse into Nazi tyranny.
Unger contrasts two modern state models—traditionalist and revolutionary socialist—and observes similar strains within both. He regards the liberal state as merely one form of modernity, concluding that societies may diverge rather than follow a uniform path.
Looking forward, Unger envisions two possible futures for the rule of law: a pessimistic cycle where postliberal decline leads back to exclusive custom-based orders resembling tribalism; or an optimistic trajectory wherein individual freedom endures beyond the rule of law’s breakdown through enhanced equality that builds trust in collective decision-making alongside more nuanced concepts of equality.
Chapter 4: Revisiting the Challenges in Social Theory
In this concluding chapter, Unger reexamines the methodological difficulties inherent in social theory. For each unresolved concern—the methodological dilemma, the issue of social order, and the nature of modernity—he asserts that political interventions are indispensable.
Addressing the methodological dilemma, Unger advocates for an interpretive approach as a substitute for the classical theorists’ rationalist and historicist methods. This approach emphasizes how actions are grounded in beliefs and how meaningful social wholes are constructed, steering clear of deterministic explanations while striving to bridge subjectivity with objectivity. Yet, this reconciliation hinges on a conviction in the unity of human spirit and necessitates the development of a community sharing common experiences and values—thereby requiring political engagement.
Regarding social order, Unger points out a fundamental conflict between legitimacy and consensus theories versus instrumentalism and private interest models, each offering divergent foundations for social cohesion. Instrumentalism better accounts for liberal societies, whereas consensus theories align with tribal or hierarchical communities. Legal scholarship provides insight into this divide by illuminating the tension between private interest and consensus-based rule interpretations. Nonetheless, resolving this issue completely calls for a political strategy that harmonizes individual liberty with communal solidarity and integrates a sense of inherent order with the potential for social transformation.
On the topic of modernity, Unger dismisses both liberalism—which conceptualizes society as an association of individuals protected by law—and Marxism—which interprets society as a class-structured system veiled by ideology. Instead, he stresses analyzing the evolving interaction between belief and experience, consciousness and institutional organization throughout history. The principal political challenge across postliberal, traditionalist, and revolutionary socialist frameworks is to reconcile freedom with community by balancing latent social order against the ability to reform social structures.
Reception
Talcott Parsons reviewed Law in Modern Society for Law & Society Review, providing measured commendation. He acknowledged the book’s significance in clarifying the legal system’s role within complex societies but critiqued Unger’s restriction of law to its relationship with the state and disagreed with his portrayal of law as embedded in modern social frameworks. Parsons concluded that although important, the work falls short of offering a comprehensive evaluation of contemporary legal and social theory debates.
In The Journal of Politics, Manning J. Dauer characterized the book as a strong case for synthesizing social sciences with legal theory. He underscored Unger’s appeal to revise traditional rule of law concepts toward more individualized judgments influenced by social scientific insights, highlighting the well-articulated dilemma confronting social sciences in defining social justice.
German sociologist Klaus Eder compared Unger’s contributions to Donald Black’s The Behavior of Law, finding Unger’s approach promising for sociological legal research. Eder regarded it as a productive hypothesis for examining law’s development through both structural description and socio-historical analysis.
James Stewart, writing for Journal of Economic Issues, recommended the volume to those searching for alternatives to conventional social theory and neoclassical economics. He emphasized Unger’s focus on comparative cultural analysis and innovative legal concepts as valuable contributions to advancing institutional economics.
Neil T. Duxbury, reflecting in The Modern Law Review, acknowledged Unger’s ambitious engagement with complex questions at social theory’s cutting edge—a hallmark of the work. However, he criticized Unger’s concept of post-liberalism as overly broad and questioned why corporatist tendencies would preserve liberal formal justice alongside substantive justice. Duxbury also cautioned that Unger’s abstract theorizing risks being contradicted by empirical data he does not address.
Alfred P. Rubin lauded Law in Modern Society in Perspective, describing Unger’s framework as original and potentially groundbreaking, albeit accessible mainly to advanced scholars. He highlighted Unger’s distinctive examination of societal shifts from status-based relations to contractual ones and back again.