公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


Shifting Boundaries: Self And Society - The Dissociation And Resociation Of "Man"
Aporia In The Agora

Archie Zariski, Senior Lecturer, Murdoch University School of Law
Technical Editor, E Law - Murdoch University Electronic Journal of Law
Unpublished paper presented at Australian Law and Society Conference, Macquarie University, Sydney, 11 December, 1993.


With a growing sense of the pathos of the occasion I read Joel F Handler's 1992 Address as outgoing President of the Law and Society Association[1], the following Comments[2], Handler's Reply and Stewart Macaulay's Postscript[3]. Why were many of these progressive scholars compelled to admit disillusionment, if not despair, over the prospects for social theory to generate vital transformative politics? What aporia was being revealed here? Was it merely a programmatic deficiency, or was there something more fundamental at the heart of this anguish?

As I pondered these questions I came more and more to the belief that certain core premises embedded in contemporary critiques of society were the source of the difficulty. On the one hand, it appeared to me improbable that theory founded on an individ ualist perspective could ever truly come to grips with the formation of communities of will. On the other hand it also seemed doubtful to me that the postmodern perspective, anchored as it is in the communal practice of language, could provide a secure fo othold for political advocacy. I decided to weigh these tentative conclusions in the light of concrete examples of leading social theory: Habermas's vision of communicative action, Unger's advocacy of plasticity in social relations, and the postmodern mom ent viewed as language critique. What follows is an account of that interrogation.

It seemed fruitful to me to differentiate two strands of liberal individualism as they might appear in contemporary critiques of society. Both deal with the foundational modern question of the relation of the self and the other which was precipitated b y the decline of tradition-based societies. One strand I will call "synthetic", the other, "analytic" individualism. Synthetic individualism locates the generation of personhood in acts of the will on its external environment. The individual is defined by her works, which include interactions with other humans. It is only through action that the individual comes to grasp her relation to the world. Analytic individualism, however, begins with introspection. An inner dialogue between "me" and "myself" initi ates the grasp of self and other: the external world is measured by internal reflection. Here I should say that I claim no psychological truth for this dichotomy. The generation of personality no doubt implicates both processes, but what seems to me impor tant is that modern social theorists have fastened on one or the other of these conceptions of the intellectual origin of "Man" as the guiding principle of their descriptions of society and prescriptions for its change.

J黵gen Habermas is concerned to improve upon Weber's rationality thesis by ridding it of the underpinnings of the "philosophy of consciousness". In pursuing this aim he seeks to replace the concept of intentional action with that of communicative actio n at the core of an understanding of society. In this endeavour he appears in my frame of reference as a proponent of synthetic over analytic individualism. Communication for Habermas is the epitome of human interaction and the basis of personhood:

Narrative practice not only serves trivial needs for mutual understanding among members trying to coordinate their common tasks; it also has a function in the self-understanding of persons. They have to objectivate their belonging to the lifeworld to which, in their actual roles as participants in communication, they do belong. For they can develop personal identities only if they recognize that the sequences of their own actions form narratively presentable life histories; they can develop social identities only if they recognize that they maintain their membership in social groups by way of participating in interactions, and thus that they are caught up in the narratively presentable histories of collectivities.[4]

Communicative action is the unique constituting mechanism of the "lifeworld" viewed as the set of potential relations, meanings and experiences available as resources which the individual may employ in her interactions with society. Habermas distinguis hes communicative action as a process from "strategic" action in which the individual does not condescend to negotiate the features of the lifeworld which are relevant to her actions, and action directed by "steering media" which simply ignore the languag e-constituted lifeworld. The lifeworld therefore is the result of the interaction of individuals within linked spheres of norms, objective description and subjective expression. It is "rational" to the extent that it reflects engagement in communicative a s opposed to strategic action or the distorting effects of steering media.

Synthetic individualism plays a foundational role in Habermas's social theory. Starting with the psychological genesis of the ability to engage in communicative action, Habermas integrates a particular conception of the rational subject into his analys is of the pressing problem of contemporary society which he terms the "colonization" of the lifeworld by the "system" constituted by non-linguistic steering media. Through the process of communicative action we become more rational, and in this synthesis, more fully human:

Rationality is understood to be a disposition of speaking and acting subjects that is expressed in modes of behavior for which there are good reasons or grounds. This means that rational expressions admit of objective evaluation. This is true of al l symbolic expressions that are, at least implicitly, connected with validity claims (or with claims that stand in internal relation to a criticizable validity claim). Any explicit examination of controversial validity claims requires an exacting form of communication satisfying the conditions of argumentation. Argumentation makes possible behavior that counts as rational in a specific sense, namely learning from explicit mistakes.[5]

Habermas goes on to make it clear that communicative action implicates validity claims in all three domains of the lifeworld: the normative, objective and subjective and therefore the quality of rationality is not confined to truth claims in a scientis tic sense. By achieving understanding and agreement with others in all three modes of discourse the individual both creates herself and adds to the stock of available resources in the lifeworld which are "always, already" there to be drawn on by participa nts in communicative action.

But by opening up the full range of human interaction to the critique of rationality Habermas must grapple with particular problems on the front of subjectivity. In this realm, the issue may be typified by the difficulty of distinguishing communicative from strategic action. Something must take the place of analysis along intentionalist lines if the philosophy of consciousness is not to be let back in to the theory. Habermas recognises the difficulty and accordingly extends the approach of synthesis of individuality to a test of sincerity; we truly are what we show ourselves to be in our interchanges with others:

Of course the claims to sincerity connected with expressive utterances is not such that it could be directly redeemed through argument as can truth or rightness claims. At most the speaker can show in the consistency of his actions whether he reall y meant what he said. The sincerity of expressions cannot be grounded but only shown; insincerity can be revealed by the lack of consistency between and utterance and the past or future actions internally connected with it.[6]

A similar difficulty in judging the quality of human association by the standard of communicative action does not, however, according to Habermas, arise in the realms of the just and the true. Here, there is a presupposition that criticizable validity claims may be discursively redeemed: "Only the truth of propositions and the rightness of moral norms and the comprehensibility or well-formedness of symbolic expressions are, by their very meaning, universal validity claims that can be tested in discours e."[7] It must be kept in mind that although Habermas eschews a metaphysical foundation for his theory of communicative action, he nevertheless claims universal validity for it as the criterion of desirable human association. He su ggests that three strategies may be employed to defend the claim for a privileging of communicative action as a principle of human development: "formal-pragmatic" development retrospectively reconstructing the process of arriving at present understandings , empirical testing of a variety of sites of communication, and the pursuit of a "history of theory" demonstrating the emergence of the theory of communicative action from less promising approaches. Habermas chooses the third alternative and thereby enga ges in a "dialogue of traditions"[8] as the means of supporting the ambitious claims of his theory.

In tracing the emergence of the concept of communicative action according to his specifications, Habermas is at pains to emphasise that it differs from other criteria of rationality in drawing into itself more than the domains of objective truth and re cognised norms:

When a hearer accepts a speech act, an agreement comes about between at least two acting and speaking subjects. However this does not rest only on the intersubjective recognition of a single, thematically stressed validity claim. Rather, an agreeme nt of this sort is achieved simultaneously at three levels.... It belongs to the communicative intent of the speaker (a) that he perform a speech act that is right in respect to the given normative context, so that between him and the hearer an intersubje ctive relation will come about which is recognized as legitimate; (b) that he make a true statement (or correct existential presuppositions), so that the hearer will accept and share the knowledge of the speaker; and (c) that he express truthfully his bel iefs, intentions, feelings, desires, and the like, so that the hearer will give credence to what is said.[9]

There is a tension in Habermas's theory of communicative action between this insistence on the presence of these three types of validity claims in every communication oriented toward reaching understanding and his thesis of the rationalization of the l ifeworld. The latter concept accommodates the empirically observed differentiation of spheres of validity in modern life identified as expert cultures in science, administration and art. For Habermas this trend characterizes modernity and is the very mean ing of the increasing rationality of society. But if the lifeworld is constituted as well as utilized in communicative action the threefold nature of that process confronts segregated horizons of possibility oriented toward either truth, rightness or sinc erity. Nevertheless, Habermas remains confident his concepts of communicative action and lifeworld can coexist by virtue of the existence of unifying "cultural traditions":

The processes of reaching understanding upon which the lifeworld is centered require a cultural tradition across the whole spectrum. In the communicative practice of everyday life, cognitive interpretations, moral expectations, expressions, and val uations have to interpenetrate and form a rational interconnectedness via the transfer of validity that is possible in the performative attitude.[10]

Thus, while the state of the lifeworld in modernity is characterized by complexity and differentiation, (which Habermas views as the opening for takeover by monological systems based on money or power), there is a persistent possibility of interaction which encompasses the range of human concerns. The communicatively acting subject is expected to redeem the promise of modernity through a responsible orientation[11] and access to a vital tradition. In order to preserve the cond itions which will allow such an individual to contribute to the renewal of the lifeworld and the improvement of institutions within it, Habermas specifies a limited role for law. The danger he foresees here is that "juridification" has the potential both to guarantee the conditions for communicative action and also to assist in the takeover of the lifeworld by non-linguistic systems of coordination through acting as a medium of their influence:

... the juridification of communicatively structured areas of action should not go beyond the enforcement of principles of the rule of law, beyond the legal institutionalization of the external constitution of, say, the family or the school. The place of law as a medium is to be taken by procedures for settling conflicts that are appropriate to the structures of action orientated by mutual understanding - discursive processes of will-formation and consensus-oriented procedures of negotiation and decisi on making.[12]

What emancipation, then, does the theory of communicative action promise? Habermas would rather call it an arrow pointing to the possibility of enhanced intersubjectivity and therefore more complete individual fulfilment. Through communication uncondit ionally oriented to reaching understanding, the subject becomes known to herself through the reflection of others.

But let us recall that communicative action entails the inclusion of the moment of expressive subjectivity which for Habermas encompasses the aesthetic experience. Arising out of this specification, two objections can be made, both of which are alluded to by Habermas but not explicitly refuted. First, the presupposition of sincerity in the expression of subjective states requires a leap of faith which can only be put to a pragmatic test: wait and see if the actor proves in her behavior to be consistent with her statements or not. Second, the discourse of aesthetics is indissolubly particular and local:

Above all, however, the type of validity claim attached to cultural values does not transcend local boundaries in the same way as truth and rightness claims. Cultural values do not count as universal; they are, as the name indicates, located within the horizon of the lifeworld of a specific group or culture. And values can be made plausible only in the context of a particular form of life. Thus the critique of value standards presupposes a shared preunderstanding among participants in the argument, a preunderstanding that is not at their disposal but constitutes and at the same time circumscribes the domain of the thematized validity claims.[13]

The practice of communicative action is thus put in the hands of a subject who cannot be judged other than provisionally and further, is enmeshed in a lifeworld that is dependent for its coherence on particular cultural constellations embodied in a uni fying tradition. Surely these concessions to contingency rob the theory of communicative action of the universality which Habermas claims to have found?

By allowing his theoretical structure to hinge on a version of the liberal subject created in the mould of synthetic individualism Habermas cannot evade an empty pragmatism and directionless relativism. He himself sees the slough of particularism into which theories of the subject can fall when he remarks on a familiar variant of modern protest:

... ascriptive characteristics such as gender, age, skin color, neighborhood, or locality, and religious affiliation serve to build up and separate off communities, to establish subculturally protected communities supportive of the search for personal and collective identity. The revaluation of the particular, the natural, the provincial, of social spaces that are small enough to be familiar, of decentralized forms of commerce and despecialized activities, of segmented pubs, simple interactions and ded ifferentiated public spheres - all this is meant to foster the revitalization of possibilities for expression and communication that have been buried alive.[14]

For Habermas such local resistance is understandable but misguided since it does not do justice to the universality of the liberal subject capable of communicative action. For the above reasons I have come to doubt the plausibility of a such a subject as the agent of emancipation.

Roberto Mangabeira Unger's project also proposes a reorientation of society promoted by and for an emancipated liberal subject, but one in a different likeness than Habermas's communicative actor. Unger's agent flows from what I have termed the influen ce of analytical individualism. Where Habermas stakes his ground in social processes of interaction, Unger delves into the inner world of the personality and derives the figure of the creative transformative agent.

For Unger the crucial element of emancipatory practice is the transcendence of formative contexts viewed as the given terms of ordinary debate. His criticism of alternative approaches to transformative theory centers around the concept of an historical "script":

The core of this idea of the script, shared by deep-structure social theory and positivist social science, is a belief that our practical and imaginative fighting over the terms of social life is not entirely in earnest. The fighting is not in earn est in the sense that the conflicts over the formative contexts of social life or over the procedures for social problem solving and interest accommodation take place under the controlling influence of forces the contenders cannot master and do not even f ully understand. The fighting may also not be in earnest in the sense that whatever the intentions of the disputants, only a narrow range of possible outcomes can stand the test of practical reality.[15]

It is the transformative agent who, in Unger's, view can see beyond a confining determinism or resigned reformism in social theory. This subject takes to heart the slogan "it's all politics" an applies herself to a rethinking of all formative contexts and institutional settings. Unger's subject is capable of generating a progressive political agenda because she has put aside the concept of a scripted pattern to life together: "Programmatic thinking gains a secure place in our ideas only when we believe both that the formative contexts of social life can be remade and reimagined and that the outcome of this reconstructive activity is not foreordained."[16]

Context-smashing for Unger is less an heroic task than a basic correlate of being human:

... our power to discover what is in fact the case exceeds the limits of any list of possible forms of inquiry, inference, or discourse we can state prospectively. We can always discover more to be true than we can yet prove, verify, or even make s ense of. We can always formulate retrospectively the systems, practices, or assumptions that enable us to prove, verify, of make sense of what we have discovered....

Our forms of inquiry, inference, or discourse supply the contexts within which our routinized perception and thinking take place. The power to see and to think beyond what any given system of methods, rules and premises can countenance illustrates our context-breaking capability.[17]

The "inventive and revelatory powers of reason"[18] are for Unger the hallmark of an empowered subject who can point the way to greater "plasticity" in social relations which robs routinized institutional structures of their d eadening force. This individual is characterised by a need for attachment to others and an associated fear of the loss of identity entailed in immersion in society. By retaining the ability to transcend any given context of relations she preserves an exis tential personal freedom and contributes an example of the empowering capability residing in each of us.

Central to Unger's progressive agent is the facility of the imagination:

The imagination works by a principle of sympathy with the suppressed and subversive elements in experience. It sees the residues, memories, and reports of past or faraway social worlds and neglected or obscure perceptions as the main stuff with whi ch we remake our contexts. It explains the operation of a social order by representing what the remaking of this order would require. It generalizes our ideas by tracing a penumbra of remembered or intimated possibility around present or past settlements, and it then subjects this enlarged sense of possibility to the tests of further comparison and practice. By all these means it undermines the identification of the actual with the possible.[19]

There is an intimate relation in Unger's social theory between the realm of personal and political relations: not only is the visionary subject the catalyst for emancipation she is the exemplar of a fully empowered citizenry. Plasticity, the variabilit y of institutional frameworks and social contexts, serves to support and enhance an approach to life together unencumbered by rigidly specified roles and narrow presuppositions of the possible forms of relationship. The achievement of an organisation of s ociety which is relatively open to revision is essential in Unger's view for unleashing the creative powers which are latent in the individual.

But the creative, context-breaking subject of Unger's transformative politics is only a hesitantly social being. Her inner resources of imagination and transcendence are seen as hostage to denial and defeat through attachment to society. Accordingly, h er visionary program must include the preservation and advancement of her individual autonomy:

The empowerment that the program is meant to foster is in part the development of our practical productive capabilities. But it is also the freedom resulting from what we most prize even in current versions of democracy and community: the promise o f forms of social engagement that save us from having to choose between isolation from other people and surrender to them and that describe modes of attachment that are also exercises in self-assertion.[20]

Unger strives to coordinate the "modernist criticism of personal relations and the leftist criticism of collective institutions"[21] in his attack on formative contexts whether in political, economic, or interpersonal role str uctures. Since the motive force behind his transformative politics is the individual's visionary ability to see through and beyond inherited contexts of action, belief and desire, Unger recognises the need to convince us that context-breaking moves suppor t and empower the transcending subject.

Thus, Unger's approach is that of a mass program in the sense that the "empowered democracy" which he recommends is allied to a higher degree of plasticity in all fora of human interaction. The necessary correlate to the revision of institutional conte xts is the occurrence of "cultural revolution":

The institutional program of empowered democracy has its counterpart in a program for the transformation of personal relations. Call this program cultural revolution. There are both causal and justificatory links between the institutional proposals and their personalist extension. Like any institutional order the institutions of empowered democracy encourage certain changes in the character of the direct practical or passionate relations among individuals, and they depend for their vitality upon th e perpetuation of these qualities.[22]

Unger recognizes that the presuppositions of the populace as to possible forms of interpersonal relations on the axis of passion is both a retarding and progressive force. Satisfaction with, or at least resignation to, given roles and behaviors is a co nservative force that drags against context-breaking and can never be completely supplanted. Such acquiescence therefore supports to some extent institutional frameworks but also issues in particular passionate attachments which have all the force of love and loyalty. As Unger sees it, the present restricted horizon of possible forms of human interaction on the expressive level results in a version of community in society which he describes (and derides) as an antique form of solidarity:

Some may object that they prefer the old version of community, the version based on the opposition of insiders and outsiders, on the intolerance of conflict within the group, on the jealous defense of exclusive communal traditions, on the commitmen t to outward, even inherited signs of joint identity, and on the insistent sharing of values and preconceptions.[23]

Yet it is important for Unger that a plurality of such communities do exist since in the conflicts they generate among themselves and in the demonstration of plasticity they afford the context-breaking imagination of the individual agent takes root and sustenance. While enshrining persistent habituations of attitude and attachment to others, the present situation of at least the Western democracies guarantees a diversity of such units and thus the potential for an exemplary break with solidified person al relations:

But there is always at least a residual uncertainty about the practical forms that properly represent a model of association and the exact domain of social practice in which it can realistically and suitably be applied. Moreover, different classes, communities, and movements of opinion believe themselves to have an interest in seeing these marginal uncertainties resolved in some ways rather than others. Thus, people quarrel about the resolution of the ambiguities.

... Such disturbances [may] force people to choose among different interpretations of the antecedent, largely implicit ideals of human association. Some interpretations fit with the current institutional order and reaffirm the dominant models of human coexistence; but others can inspire challenges to the institutional order and begin to unravel the imaginative scheme.[24]

Because Unger acknowledges that his must be a realistic and not utopian prescription, he accepts the force and logic of entrenched schema of passionate relations. He does not seek to reform human nature but accepts that "many of our predispositions tow ard one another resist manipulation."[25] This is because such formative contexts provide us with a "grammar of social action"[26] which simplifies the process of negotiating individuality within society :

The imaginative plan of social life thereby keeps people from having to deal with one another as contract partners who share little common experience or allegiance and therefore try to regulate their dealings with as much prospective detail as poss ible. To make a social world in this way both authoritative and intelligible is part of what is implied in giving up the fight over the further reconstruction of the formative context.[27]

But that fight must be fought if empowered democracy and its cultural-revolutionary correlates are to be won. The program of plasticity must not ignore, but rather overcome particular human attachments along the road to a general loosening of the const raints on new communitarian forms. Unger's radical program must surmount the obstacle faced by any revolution, that is the uncertainty of success amidst the reality of a present accommodation. Human nature gravitates, it seems, to a certain level of stab ility in personal affairs which supports formative contexts and places severe psychological barriers in the way of their transcendence:

Whether the imaginative scheme is unitary or pluralistic and whether it takes its more elitist and systematic or more popular and contradictory forms, it exercises a retrospective stablizing influence upon a social order. Any marked deviation by an individual from social norms begins to appear selfish and antisocial whatever its actual motives. Any conflict that defies the scheme seems to threaten civilization itself, if not in the large then in the small, in the detailed pieties by which people ev aluate one another and in the implicit assumptions that sustain trust and permit communication.[28]

How does Unger propose to subvert this apparently inherent conservatism in our approach to human relations? He would appeal to the "secret independence and unfulfilled yearning"[29] that he believes introspection can bring to light in every individual. The liberal subject in Unger's view is characterised by a capacity for transcendence which cannot be denied. In his words, the "transcendent personality" uniquely harbors the imaginative faculty which has access to the realm of infinite possibility within any limited context:

The imagination - including the artistic imagination - is nothing but the search for reality through the perpetual multiplication of schemes of transformative variation, reaching toward the unconditional through the discovery of the less conditiona l.... When it determines to provide visible signs of its own power to break all rules, the imagination pursues the paradoxical ambition of giving a finite form to the infinite.[30]

In a less entrenched and more revisable social environment every citizen becomes an empowered individual with traits more like those of the artist of romantic conception: "The ordinary person becomes... more like the poet, whose visionary heightening o f expressed emotion may border on unintelligibility and aphasia."[31]

But how does Unger propose to bring about such a climate of "unplanned experimentation" in interpersonal relations given the recognized insecurities it entails? In the end, to date his program offers nothing more than "informed promises of happiness."[32] His vision of revisable community limits his prescriptions since he acknowledges that the temptation to impose his own vision of plasticity in human affairs must be avoided: the new community cannot be attained apart from the creative intervention of its members:

A version of community less susceptible to the apology of dominion or the superstition of false necessity in social life can flourish only in an institutional framework that disrupts more effectively than current institutions the mechanisms of depe ndence and subjugation in social life. Such a framework must invite conflict rather than suppress it.... The communitarian who begins by attempting to construct a more suitable institutional vessel for his commitments discovers that he has pushed the rece ived communitarian ideal in a particular direction or resolved it internal ambiguities in a certain way.[33]

This self-effacing humility is one explanation for the lack of programmatic detail concerning the nature of the interpersonal relations to be anticipated in Unger's empowered democracy. Unger himself advances another reason by describing the program as outlined in the volume False Necessity as operating on too gross a scale to encompass the "fine structure" of empowered human relations. What is offered is merely the assurance that the citizen of the empowered democracy will not be "abandoned, humbled, or oppressed"[34] by institutions made more plastic. In such an environment individuals are to be freed to pursue self-assertion in the mode of imaginative self-representation and non-threatening attachment.

It should by now have become apparent that the liberal conception of the transcendent personality is the key to Unger's vision of empowered democracy and greater plasticity in human relations. For me this approach recalls the problems associated with theories of "false consciousness". What or who is to liberate the creative energy of the infinite contained within the individual? How can the revolutionary convince individuals to forsake the comfortable grammar of existing social relations for an uncert ain future defined only by heightened conflict? Is there a vanguard, and if so, how can it goad without being forced to lead?

Unger does not resolve this issue to my satisfaction. The intractable difficulty entailed by his dedication to the liberal subject created in the mould of analytical individualism may be encapsulated by his treatment of the role of law in relation to p rocesses of empowerment. Without at all questioning the necessity of legal ordering he exposes it to an apparently devastating critique. On the one hand law in (presumably Western democratic) societies which have abandoned a "single, exemplary model of hu man association"[35] finds itself exposed to possibilities of reordering human relations in accord with the limited perspective of interest-groups or classes within a pluralist society and thereby becoming implicated in denying t he empowering element in social conflict. On the other hand, in reaction to the dangerous embrace of change, law may retreat from the challenge by "attempting to keep legal reasoning very close to narrow precedent and narrow construction."[36] This chaotic oscillation in the institutional setting parallels the precarious vacillation of Unger's creative subject who hesitates to prophesy for fear of losing the prosaic ground of everyday life[37]. Analytic individualism simply does not provide a satisfactory lever with which to move human relations in the direction of emancipation.

Both Habermas and Unger place their faith in a fundamentally dissociated subject. In the theory of communicative action it is the actor who is given an essential freedom to choose strategic over communicative action and to mask her motives behind the t rappings of sincerity: posterity will be the only witness to transformative practice which has been deformed for private ends. In Unger's program for realising empowered democracy we see the same liberal subject set adrift from the influence of immediate loyalties and reciprocating love to pursue dreams of wider scope and impact upon her fellows: Unger at least recognises the opening here for a tempering of the absolute arrived at introspectively:

A driving force of the constitu tional program is the desire to do justice to the human heart, to free it from indignity and satisfy its hidden and insulted longing for greatness in a fashion it need not be fearful or ashamed of. To this end, the experience of empowerment must be made real rather than vicarious. It must be reconciled with the ordinary needs and attachments of ordinary people. And it must be freed from its corrupting association with the cult of leaders and of violence.[38]

To what extent Habermas and Unger have made provision for compensating for or correcting the excesses which the dissociated subject may bring to human relations can, I hope be judged by the foregoing investigation. It hardly needs repeating to say that I do not believe either have adequately done so.

Habermas and Unger also contrast their projects with those of postmodernity, clearly both preferring to take to the limit the liberal tradition rather than making a new departure which entails the abandonment of the liberal individual at the core of em ancipatory social theory. Since the scholarly reflections which spurred on this piece dwelled heavily on the supposed failure of communitarian vision among the postmoderns, I will also make some mention of their stance.

Firstly, to clarify the points of difference between liberal (or "superliberal"[39]) social theories and those of deconstruction as seen by Habermas and Unger. As a result of the absence of the transcendental subject valued by both of them, postmodern critiques appear to their eyes as disjointed, local and atheoretical.

For Habermas, postmodern critique, coming under the rubric of "interpretive sociology", describes the sufferings connected with "disintegrating traditions and forms of life" and "sharpens our perception of historical asynchronicities" but in the end fa il to generate an understanding of the real nature of the barriers to emancipation: "As a result, the subcultural mirrorings in which the sociopathologies of modernity are refracted and reflected retain the subjective and accidental character of uncompreh ended events."[40]

Unger ironically gives the name "ultra theory" to postmodernism which for him is constituted by an abhorrence of theory. Rather he identifies a set of intellectual practices which typify the ultra-theorist: "negativistic explanatory therapeutic", "the vindication of repressed solutions", and lastly, the development of "anticipatory visions of more ideal forms of social life" which are not allied to any stable value system.[41] Unger sympathises with the postmoderns but rather takes up in earnest the idea of liberal progress through the medium of the imaginative accomplishments of the empowered subject. Leaving the postmoderns to their "particular exercises" and the "endless labor of negation"[42] he p refers to prepare a theoretically aggressive strategy for emancipation built confidently on the analytic achievements of the transcendental personality.

In sum, Habermas and Unger both recognize some affinity of their projects to those of postmodernity. Habermas parts company when he concludes that deconstructive approaches offer no more than a defensive resistance to the reification of human relations in the lifeworld without also advancing an offensive strategy for reclaiming it from the influence of media steered by money and power. In order to achieve this, Habermas emphasises the primacy of communicative action in the hands of the responsible subj ect. Unger also affirms the centrality of the subject and her creative potential, for him, arising from the inner resource of imagination as the motive force of revolutionary change.

For me, emancipation built on the foundation of the liberal subject is built on shifting sand. It requires excessive investment of trust in the sincerity and faith in the courage of an individual destined to bear the weight of humanity's entire burden. It slights the influence of connection and collaboration in achieving the risky enterprise of emancipation. It calls upon us to consider ourselves students of "Law and the Individual" and encourages us to see collectivities as at best, amorphous, and at worst, deluded. More promising avenues of approach to emancipation can be taken which play upon the strengths of existing community, however limited or partial they may be: feminism, the discourse of race, gay and lesbian pride movements and others may ta ke the place of the liberal subject as a progressive force. Let us examine the alternatives to action centred around other principles than synthetic or analytic individualism before we shed tears for the aporia in the agora.


[1] Joel F Handler, "Postmodernism, Protest, and the New Social Movements", Law & Society Review, Vol 26, No 4, (1992), 697-731.

[2] By Michael McCann, Regina Austin, Patricia Ewick, Kitty Calavita & Carroll Seron, Allan C Hutchinson, and Steven L Winter.

[3] Stewart Macaulay, "On Rattling Cages: Joel Handler Goes to Philadelphia and Gives a Presidential Address", Law & Society Review, Vol 26, No 4, (1992), 825-830.

[4] J黵gen Habermas, The Theory of Communicative Action, Vol 2 Lifeworld and System: A Critique of Functionalist Reason, (herein "Habermas, Lifeworld") Boston: Beacon Press, 1987, 136.

[5] J黵gen Habermas, The Theory of Communicative Action, Vol 1 Reason and the Rationalization of Society, (herein "Habermas, Reason") Boston: Beacon Press, 1984, 22.

[6] Ibid 41.

[7] Ibid 42.

[8] "Thus for any social theory, linking up with the history of theory is also a kind of test; the more freely it can take up, explain, criticize, and carry on the intentions of earlier theory traditions, the more impervious it is to the danger that particular interests are being brought to bear unnoticed in its own theoretical perspective." Habermas, Reason, 140.

[9] Habermas, Reason, 307-308.

[10] Habermas, Lifeworld, 327.

[11] "...the responsibility of a communicatively acting subject. By this I understand strength of will, credibility, and reliability, that is to say, cognitive, expressive, and moral-practical virtues of action oriented to val idity claims." Habermas, Lifeworld, 181.

[12] Habermas, Lifeworld, 370-371.

[13] Habermas, Reason, 42.

[14] Habermas, Lifeworld, 395.

[15] Roberto Mangabeira Unger, Social Theory: Its Situation and Its Task, (herein "Unger, Theory") A Critical Introduction to Politics: A Work in Constructive Social Theory, Cambridge: Cambridge University Press, 1987, 135.

[16] Ibid 159.

[17] Ibid 185.

[18] Ibid 195.

[19] Ibid 204.

[20] Roberto Mangabeira Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy, (herein "Unger, Necessity") Part I of Politics, A Work in Constructive Social Theory, Cambridge: Cambridge U niversity Press, 1987, 9.

[21] Ibid 11.

[22] Ibid 556.

[23] Ibid 594.

[24] Ibid 272-273.

[25] Ibid 559.

[26] Ibid 270.

[27] Id.

[28] Unger, Necessity, 272.

[29] Ibid 273.

[30] Ibid 574.

[31] Ibid 566.

[32] Ibid 594.

[33] Ibid 24.

[34] Ibid 579.

[35] Ibid 270.

[36] Ibid 271.

[37] Unger would rather put it thus: "Forever hesitating between the desire to credit a partial and provisional structure with absolute reality and value and the iconoclastic rejection of each context-bound insight and satisfa ction, the person becomes the ultimate subject matter and the real protagonist." Unger, Theory, 198-199.

[38] Ibid 584.

[39] "This superliberalism is also the defensible form of a leftist ideal that breaks the spell of deep-logic social theory, confronts the need to think institutionally, refuses to define itself by reference to class interests shaped by the very institutions it wants to reconstruct, and seeks to further both freedom and equality by turning subversion into a practical way of life." Unger, Necessity, 588-589.

[40] Habermas, Lifeworld, 377.

[41] Unger, Theory, 167-168.

[42] Ibid 169.