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New Rights for Old?
Published online by Cambridge University Press: 16 January 2009
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The objective of this article is very limited, but if realised, I believe it has far-reaching implications. I want to examine the narrow topic of Unger's approach to rights. In exploring this objective I shall not be concerned with considering Unger's general approach to law, or with other aspects of his legal theory. Nor shall I question the assumptions that Unger may be making about the human condition or the nature of the world in which we live. Ignoring these wider concerns, my objective is to demonstrate that the new rights of Unger's deviationist doctrine in fact embody the old rights of legal formalism that their author has purported to abandon. The implications are twofold. First, for Unger's general enterprise: if it turns out that there is nothing new in his radical showpiece of rights, then some aspersions must be cast on the claims of novelty and radical efficacy made for “the program of empowered democracy” in which this showpiece is set.
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References
1 Considered in Finnis, “On ‘The Critical Legal Studies Movement’ ” in Eekelaar, John and Bell, John (eds.), Oxford Essays in Jurisprudence, Third Series (Oxford 1987), p. 145Google Scholar (also found in (1985) 30 American Journal of Jurisprudence 21);CrossRefGoogle Scholar and in MacCormick, , “Reconstruction after Deconstruction: A Response to CLS” (1990) 10 Oxford Journal of Legal Studies 539.CrossRefGoogle Scholar Unger's ideas are to be found in “The Critical Legal Studies Movement” (1983) 96 Harv. L. Rev. 561, subsequently published as The Critical Legal Studies Movement (Cambridge MA 1986),Google Scholar hereinafter CLSM with page references to the book version; and in False Necessity, Part I of Politics (Cambridge 1987),Google Scholar hereinafter FN.
2 Such as the role of the judge, considered in Harris, “Unger's Critique of Formalism in Legal Reasoning: Hero, Hercules, and Humdrum” (1989) 52 M.L.R. 42.
3 Considered in Fish, , “Unger and Milton” [1988] Duke Law Journal 975.Google Scholar For a view of Unger's assumptions about economics, see Schwartzstein, “Austrian Economics and the Current Debate Between Critical Legal Studies and Law and Economics” (1992) 20 Hofstra Law Review 1105 at 1122.
4 Disbelief in the novelty of Unger's ideas has been aired before: Finnis, op. cit. note 1 above, pp. 156f.; MacCormick, op. cit. note 1 above, p. 555.
5 CLSM, p. 36. The programme is described in the preceding pp. 25ff.; FN ch. 5
6 FN pp. 128, 133.
7 FN pp. 128–130.
8 FN p. 128.
9 FN pp. 130–133.
10 FN p. 132.
11 FN p. 133.
12 E.g. CLSM p. 30, FN pp. 164f.
13 CLSM, p. 36.
14 Ibid. Cf. FN pp. 512f.
15 CLSM pp. 36, 38. Note that although the “consolidated property right” is regarded by Unger as the paradigm, even “the very model” of the traditional right, there are other instances of traditional rights which share this form, notably contract rights (e.g. text at note 29 below).
16 CLSM pp. 38f. I use the term “sociopolitical” here and throughout this article to convey something broader than a narrowly conventional understanding of “political” which fits with Unger's own broader deployment of the latter term (see Social Theory: Its Situation and Its Task, A Critical Introduction to Politics (Cambridge 1987), p. 10,Google Scholar note.
17 CLSM pp. 38f. A critique of Unger's system of rights is provided by Eidenmuller, “Rights, Systems of Rights, and Unger's System of Rights”, (1991) 10 Law & Philosophy 1 and 119.
18 CLSM p. 39.
19 CLSM pp. 38f.
20 CLSM pp. 39,54; FN pp. 513f, 524f, 528–530. There are a number of points of interest concerning these rights which cannot be fully dealt with here. The protection afforded by immunity rights concerns what is regarded as important for the citizen from the ideological viewpoint of the empowered democracy rather than what he himself may regard as important (FN pp. 514, 524). The level of protection may be measured in both absolute and relative terms (FN p. 524), but immunity rights afford only a minimum level of protection (CLSM p. 54). It is not easy to reconcile these points with the stated objective for the rights to produce a contented citizenry.
21 CLSM p. 39.
22 CLSM pp. 84f.
23 FN p. 530.
24 Ibid.
25 FN p. 529.
26 FN p. 530.
27 FN p. 529. Cf. p. 527.
28 FN p. 526.
29 FN p. 530.
30 The most elementary details are lacking in Unger's account.
31 FN p. 530.
32 See p. 575 above.
33 FN p. 530.
34 FN p. 526. Cf. CLSM p. 39.
35 See pp. 576–577 above.
36 FN p. 526.
37 CLSM p. 38.
38 I choose material welfare for ease of illustration, but the same point could be made in relation to the other concerns of immunity rights.
39 FN p. 510.
40 CLSM pp. 39, 43.
41 CLSM p. 39, FN p. 530.
42 CLSM pp. 54, 55.
43 FN pp. 532f.
44 FN p. 533.
45 It does not matter whether the vote is in an election for a government who will decide the matter or in a referendum that will directly decide the matter, which seems to be Unger's preference on some occasions (FN p. 533).
46 FN p. 535. Unger also repeats here the argument of distinctiveness based on source, which was dealt with above in relation to immunity rights.
47 Above at note 24.
48 FN p. 535.
49 I use traditional terminology. Unger indicates that in some cases novel institutions will be used to provide the relief (CLSM p. 55, FN p. 532) but this does not affect the point at issue.
50 I investigate the relationship between rights and claims more fully elsewhere: “More Comments on Rights and Claims” (1991) 10 Law and Philosophy 271.
51 CLSM p. 39.
52 FN p. 535.
53 It may of course be accompanied by the ancillary right (justified claim) to make the claim (as in locus standi) but this should not be confused with it—see further op. cit. above note 50.
54 FN pp. 530, 531.
55 FN pp. 533–535. It is immaterial to this point whether the claim to relief is made to a legislative, judicial, or administrative type of body.
56 FN pp. 534f.
57 FN p. 535.
58 1 deal with the relationships between abstract rights and concrete rights in “A Framework for Discussing Rights”, in preparation.
59 Considered further in op. cit. note 58 above.
60 FN p. 535.
61 FN p. 520. Cf. CLSM p. 39.
62 FN p. 523.
63 There are two particular factors that go to compose this: the fact that the market right-holders already have their basic security guaranteed by their immunity rights; the structure of the market based on the idea of “the rotating capital fund” which ensures wider access to the possession of capital and thus wider involvement in the market than would a traditionally structured market, and is reflected in the market rights assuming a character that has more in common with contract than consolidated property: FN pp. 522f.
64 FN p. 522.
65 FN p. 522.
66 As with immunity rights, the hesitation is found in the earlier CLSM, at p. 39. It touches upon the points of treating the rights as claims and their non-absolute nature, and as a backstop position Unger argues that even if market rights are found to have a degree of fixity there remain other types of rights which differ from them.
67 FN p. 538.
68 CLSM pp. 39f, FN p. 535.
69 CLSM p. 40.
70 CLSM pp. 39f, 57–86; FN pp. 536–538.
71 CLSM pp..84f.
72 CLSM p. 85.
73 CLSM p. 40, FN pp. 538f.
74 FN n S1Q 74 FN p. 539.
75 Ibid.
76 CLSM p. 85. In considering the practicalities of Unger's proposals, two points need to be borne in mind. (1) An alternative “gamble” may arise if interdependent relationships are left unfixed at the first stage yet deal in matters that are also the subject of further interdependent relationships— hence the virtue of certainty in commercial transactions. (2) The specification of fixed legal relationships should not be regarded as antipathetic to the promotion of interdependent relationships based on trust. For the relationship of trust may flourish by both parties choosing to ignore the strict legal position (see, e.g. , Beale and Dugdale, , “Contracts between Businessmen” (1975) 2 British Journal of Law and Society 45CrossRefGoogle Scholar on the law of contract and continuing business relationships); and given that there is always the possibility that one of the parties may choose to abuse the relationship of trust the legal position may be regarded as a sensible fallback position (see Waldron, further, “When Justice Replaces Affection: The Need for Rights” (1988) 11 Harvard Journal of Law and Public Policy 625).Google Scholar
77 See p. 577 above.
78 See pp. 584–586 above.
79 FN p. 512. Cf. FN p. 535 (“untrammeled individual discretion”), CLSM p. 36 (“shoot at will”).
80 Whether intrinsically (e.g. a right to hold a person for questioning for an unlimited period of time), or in relation to extrinsic factors, as with the example of the orchard above, pp. 576, 582. The recognition of whether it is the content of rights that makes them oppressive as being a crucial question is found in Kelman, , A Guide to Critical Legal Studies (Cambridge MA 1987), p. 274.Google Scholar But the question is not pursued.
81 This may be regarded as deploying the converse of the fallacy which regards the bright line boundary of traditional rights as permitting unlimited or “absolute” discretion, and thus as being identified with the opportunity for oppression, for dwelling upon the uncertainties attending the processes by which the rights are established permits us to ignore the boundaries that are found around those rights which are eventually established, from which we (fallaciously) infer that the rights cannot provide the opportunity for oppression.
82 Finnis, op. cit. note I above, p. 149, significantly points out that Unger fails to mention how the “critical” processes are to differ from traditional ones. And for an argument on how traditional legal scholarship can be regarded as possessing the capacity to “reconstruct” legal materials in a vibrant way, see MacCormick, op. cit. note 1 above.
83 Compare the setting up of tribunals to administer the entitlements of the welfare state after World War II in the United Kingdom.
84 Kelman, op. cit. note 80 above, p. 275, correctly observes that “the spirit of the antirights … approach is to abandon known distorting categories, to leap ahead, not fully aware how one will reconstruct the world …” The possibility of sinister implications for this approach in the works of Unger is picked up by Ewald, “Unger's Philosophy: A Critical Legal Study” and “Reply” (1988) 97 Yale L.J. 665 and 773 at 741–748, 748–753, 755, 774; and also in Price, “Taking Rights Cynically: A Review of Critical Legal Studies” [1989] C.L.J. 271 at 297 note 93.
85 E.g. CLSM pp. 30f.
86 Fish, op. cit. note 3 above, pp. 1008–1012.
87 It is significant that although much of the debate that has ensued over the CLS position on rights has been couched in terms of hostility towards or approval of rights, it is possible to find in both camps a recognition that certain lines need to be drawn—e.g. in Delgado, , “The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?” (1987) 22 Harvard Civil Rights—Civil Liberties Law Review 301Google Scholar (approving of rights): an insistence on drawing lines against racism (particularly at 321); and in Olsen, , “Statutory Rape: A Feminist Critique of Rights Analysis” (1984) 63 Texas Law Review 387Google Scholar (hostile to rights): an insistence on drawing lines from a feminist perspective (particularly at 431) despite the earlier remonstrations against drawing lines (at 427, 429). From this observation follows an obvious suggestion, that much of the disagreement on whether or not to have rights can be resolved into the issue of what rights to have.