Vol. 26 No. 8 (December 2016) pp. 148-151
THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, by Roberto Mangabeira Unger. London & New York: Verso, 2015. 224 pp. Cloth $85.00. ISBN: 978-1-78168-340-8. Paper $26.95. ISBN: 978-1-78168-339-2.
Reviewed by Paul Baumgardner, Department of Politics, Princeton University. Email: firstname.lastname@example.org.
In those American political science departments that still retain some interest in jurisprudence, it is not uncommon that critical legal studies is given short shrift. If any work related to critical legal studies is assigned, it is generally one work: legal philosopher Roberto Mangabeira Unger’s THE CRITICAL LEGAL STUDIES MOVEMENT (Unger 1986). For some reason, Unger’s text remains the go-to work when academics want to quickly flatten, characterize, and often caricature critical legal scholarship and the critical legal studies movement.
For this reason alone, it strikes me as shocking how little academic coverage there has been around Roberto Unger’s most recent book. Almost thirty years after the publication of THE CRITICAL LEGAL STUDIES MOVEMENT, Unger has released an updated version of his classic text. In this most recent publication, titled THE CRITICAL LEGAL STUDIES MOVEMENT: ANOTHER TIME, A GREATER TASK, Unger offers a renewed call to arms for the next generation of legal radicals. In addition to this war cry, the new introduction to the book provides a unique interpretation of the history of the leftist movement, including a highly controversial diagnosis of the reasons behind the movement’s demise.
Unger begins with “The Context” behind updating the decades-old book (p. 3). This work began as an ambitious lecture on and for critical legal studies (hereinafter CLS), an “after-dinner speech, delivered at the Sixth Annual Conference in Critical Legal Studies” in March 1982 (p. 42). The speech was then published in the Harvard Law Review in 1983 and later turned into the important book. Unger has furnished a new edition, he tells us, “to place both the movement and the book in context and to reconsider both the book and the movement in the light of subsequent developments” (p. 3). Additionally, Unger intends “to look to the future, and to consider the vocation of legal thought now” (p. 3).
This updated edition reproduces the text of the 1986 book, but also supplies a rich, extended Part I to the book. In this introductory section, Unger pivots seamlessly between the past, present, and future of critical legal thought, clearly communicating where and why the ball was dropped and what leftist legal scholars can do, moving forward, to avoid similar pitfalls.
Firstly, Unger applauds CLS for all that the movement accomplished. It correctly identified the critical juncture that existed in American society, in general, and American law, legal education, and legal thought, in particular. Over the course of the 1970s and 1980s, the movement generated new directions for legal thinking and “offered a different way to engage legal culture” (p. 32). However, although CLS enjoyed a number of meaningful successes, Unger argues that these achievements have been outweighed by the movement’s failings. In fact, some of the greatest legal and political contributions within ANOTHER TIME, A GREATER TASK concern the criticisms and tremendous disappointment that Unger vocalizes about the critical legal studies movement.
These criticisms cannot be understood fully [*149] without first uncovering Unger’s original and ill-fated plan for the legal movement. Unger’s 1982 speech to the Conference on Critical Legal Studies marked a blueprint for the movement, a blueprint that is repeated and reinforced in his Harvard Law Review article, the original CRITICAL LEGAL STUDIES MOVEMENT book, and in ANOTHER TIME, A GREATER TASK. A founding member of CLS, insofar as he was one of the most influential critical legal theorists of the late 1970s and also one of the nine members of the organizing committee for the first Conference on Critical Legal Studies in 1977, Unger pushed the group to become a genuine legal/political movement, performing theoretical work that informed and guided practical political efforts aimed at broadscale social transformation. Unlike the theoretical “schools” that were popping up in American law schools during the 1970s, such as the law-and-economics and the liberal rights schools, Unger urged critical legal studies to become a “movement” both in “thought and practice” (p. 79, 91).
The CLS movement self-consciously moved in a different direction than Unger proposed, which may explain why Unger maintained a limited role within the movement for the remainder of the 1980s. Although he certainly found himself within the CLS bloc of professors at Harvard Law School during this tumultuous period of the American legal academy, he did not stay active in the broader movement. For instance, presentation lists from the annual Conferences on Critical Legal Studies indicate that Unger did not organize or present in the overwhelming majority of the conferences, unlike other leaders of the movement.
In ANOTHER TIME, A GREATER TASK, Unger has returned to judge CLS against this backdrop of the road not taken—or, more specifically, his road not taken. However, Unger approaches this topic slowly and indirectly. He crafts a partial theory of legal history, which we learn also mirrors the history of society and the evolution of our political and legal structures. Unger argues that this history possesses “a characteristic rhythm: a recurrent success of three moments” (p. 17). The first moment of refoundation is characterized by a grand “institutional and ideological settlement,” when new institutions are designed, ideologies enthroned, and “access to the resources, of economic capital, political power, and cultural authority” are negotiated and routinized (p. 17). Unger connects this moment with certain periods in American history, such as our national founding, the Civil War and its aftermath, and the New Deal (p. 18). The second moment—normalization—entrenches the institutional and ideological settlement, giving it greater definition and practical reinforcement (p. 18-19). The final moment is what Unger terms “darkening” (p. 19). Darkening represents a sustained period of critical juncture, wherein the regnant social settlement and corresponding political and legal arrangements become unbending, out of place, and hollow. This moment is inherently unstable and disorienting, as the “authority and clarity” within our social order is jeopardized and vulnerable institutions begin to be challenged (pp. 20-21). Only a moment of refounding can remedy this chaos.
For Unger, law and legal theory play an important role in each of these moments. Law works to implant and protect the ideological foundations within society. Legal professionals give us “a comprehensive set of rules, doctrines, and categories” that normalize and sharpen our political and legal structures (p. 19). Most pressingly for Unger, legal theory—if formulated and applied correctly—can illuminate a refoundation out of a moment of darkening.
This was the fatal flaw of the critical legal studies movement, Unger writes. Contrary to much of American political development scholarship on temporally short and [*150] institutionally piecemeal critical junctures, Unger makes a curious and provocative claim that deserves further exploration in political science: from the 1970s up to the present, the United States has been stuck in a moment of darkening, and the sole way out is through a transformational project of legal theory married to legal practice and institutional reconstruction. Although CLS gave us fine ideas, Unger laments that the movement engaged in a “half-hearted prosecution” of the real political project at hand (pp. 21-2, 24). CLS members became too enraptured by an esoteric theoretical program and the movement developed into an unorganized grouping of thinkers that lacked a unifying platform for political engagement and institutional innovation in the United States.
Unger is most scathing (and personal) on this point. Midway through Part I, he poses the question: “For what did critical legal studies stand?” (p. 26). He identifies three separate strands of the radical leftist movement. Unger considers the first two to be the more dominant strands within the movement; these concern legal indeterminacy in the law and law’s role in supporting and mediating capitalism (pp. 26-29). Unger explicates these theoretical strands and gestures toward major figures in the movement, such as Duncan Kennedy and Morton Horwitz, who advanced them. Unfortunately, each of these theoretical strands handicapped CLS: “Nothing therefore supported the movement from explanation and criticism to proposal—from the is to the ought, from the actual to the adjacent possible—without which legal thought ceases to be the practical discipline that it has always been and loses its transformative potency” (p. 29). Unger attacks the movement for hitching its wagon to these strands, which bred ivory tower projects crippled by political and institutional weaknesses.
Unger then reveals the third strand of CLS, “the least remarked” yet “most novel” position: his own position, as articulated in his 1982 speech to the Conference on Critical Legal Studies and his 1986 book (p. 29, 32). The movement had the potential to pursue an “institutionalist approach,” by unearthing and exploiting the critical juncture in American politics and law and then supplying institutional alternatives (p. 29). CLS lacked this essential “institutional program”; the Crits never produced or allied with a suitable “surrogate” for their abstract work, as Unger sees the legal realists having done with the New Deal (p. 30). If CLS had pursued this institutionalist approach, the movement may not have met its end. It may not have “failed in its most important task” and left the country in a moment of darkening (p. 32).
ANOTHER TIME, A GREATER TASK issues sharp and engaging analysis of the critical legal studies movement and stands as an impressive continuation of Unger’s political mission. However, although readers may turn to “the most influential, philosophically adept, and historically and sociologically learned exponent of the Movement” for the CliffsNotes on CLS, Unger’s aspirations for and assessments of the movement are idiosyncratic—a fact that even he concedes (Finnis 1985, p. 22). For instance, Unger looks back over CLS, but he does not exert much energy outlining the internal dimensions of the movement. Although extremely judgmental of the movement, Unger does not untangle the organizational design, activities, or strategies associated with CLS. Doing so might actually highlight the unique forms of political engagement and institutional innovation that CLS and individual Crits embraced during the 1970s and 1980s.
But these weaknesses of the updated book stem from the fact that Unger intended ANOTHER TIME, A GREATER TASK to function as more than a movement history or a public censure. It is meant to be a clarion call for legal radicals today. CLS might not have brought about widespread political and legal transformation, but better-directed critical legal theorists working today still [*151] can. Unger wants to remind contemporary Crits that the path to refoundation is still available. By embracing political engagement and “creating institutions and practices” that move beyond our decayed institutional and ideological settlement, critical theorists can push American society closer to meaningful “structural change” (p. 23).
Finnis, John M., 1985. “On The Critical Legal Studies Movement.” AMERICAN JOURNAL OF JURISPRUDENCE. 30: 21 - 42.
Unger, Roberto Mangabeira. 1986. THE CRITICAL LEGAL STUDIES MOVEMENT. Cambridge, MA & London: Harvard University Press.
© Copyright 2016 by author, Paul Baumgardner.