But How to Do That?

5/13/2017—In 1996, Roberto Unger set the task for law in the opening paragraph of his book, What Should Legal Analysis Become?: "The conflict over the basic terms of social life, having fled from the ancient arenas of politics and philosophy, lives under disguise and under constraint in the narrower and more arcane debates of the specialized professions. There we must find this conflict, and bring it back, transformed, to the larger life of society."

I believe it is pretty easy to see that Unger’s premises are correct. That is, that this society no longer can conduct debate in a political sense over the basic terms of social life. In that sense, that conflict has fled from politics and philosophy. Unger’s other premise is that the same conflict or conflicts now take place in disciplines like law. We can see that in the immediate challenges to President Trump’s executive orders in court. Law is where the society debates all of the major issues.

My students will attest that I have been obsessed with this quote from Roberto Unger for years. The task of law in America is very particular and is not merely the task of law in general: dispute resolution and the maintenance of social bonds. No, here the task is deeply political and has to do with the reinvigoration of public life.

But how is this to be done? Certainly Unger never succeeded even in part in accomplishing his goal. Politics is even more sick today than in 1996 and law ever more politicized in the worst possible sense.

But in coming into contact with the German philosopher Peter Sloterdijk, I have begun to see how this might be done. Sloterdijk writes in his book, Not Saved, that it is necessary to understand empirical and philosophical anthropology in order to engage the human situation.

Perhaps what is needed in law is just the kind of empirical anthropology that the legal realists were attempting to create. That is, perhaps what law professors should be doing is predominantly descriptive: attempting to set for what we do and how we think and what our commitments are. This would turn law into a science in a good sense. And it would be possible the judge good law thinking from bad law thinking.

As usual, Robert Taylor anticipated me here by asking years ago in what mood must one be to do law? If we take that question very seriously, so that we begin to understand what we are doing when we do law, we might bring something of value to the greater society.

Currently, lawyers lie to the people and falsely claim that law is objective and simple. It is neither, which does not mean that it is subjective or even complex. Doing law is a rich human engagement. There are reasons why judges, law professors, legislators and lawyers in general do and write and say what we do and write and say. It should be possible to specify what those reasons are. That would be the task of law.