The Research On Unger's Critical Theory Of Modern Rule Of Law

Rule of law ,which is referred to as"leagal order"in Unger's writings, is considered as the basic model of governance in the modern Western liberal society. In history human society has experienced a series of different leagal types ,which can be respectively suited to diffrerent social formation. Unger summarized human legal types ariseing up to now as customary law, bureaucratic law and legal order on the grounds of Weber's"idea type"methodology. Among them, the legal order ,which only emerged in the Western liberal society, was a unique one by virture of its "generality" and "autonomy" characteristics . Such legal model is believed as the best one having existed until now by the mainstream of liberal jurisprudence in the West. Liberal jurisprudence claims a unitary effective source of the law and advocates the unification of the legal system, which has a pyramid structure from whose bottom to top we can trace it back to the whole rule system's final authority. However, Unger does not think so, at least in the existing institutional level. He maintains the diversification of the law , emphasizes selective possibilities in Western and other diverse traditions, and attach importance to the studies of limitations of legal experiences and knowledges in various cultures. But Unger also recognized at the minimum the universality as to the generation of legal institutions. He describes a evolutionary process of human society from "natural order" to"society as artifact"in"Law in Modern Society",which is his his key work on criticism of modern rule of law. "Human nature" is Unger's vital link between universality and particularity of different society types. In his view, all the specific type of system is the realization of human nature's certain abstract elements. The course, that human being breakes away from the restriction of instinct and makes and remakes society at their will, is political. So legal institutions are the results of political struggles by accident. The limitations inherent in politics cause insuperable defects in the reality of human ideal, and we cannot bridge the huge gaps between human and nature, individual and society,and finally, local and universal. There are a hidden faw between the promise of equality and freedom made by current legal ideology and realistic experiences on oppression and hierarchy. When, for whatever reason, the weakness becomes manifest and has a clear-cut consequences, the society disintegrates and take on a new form. Based on the principle that legal patterns accommodate to social formations, Unger asserts, after welfare-corporate state Springing up in postliberal society, that ,only on the condition of transcending theoretical foundation of modern rule of, can we create the new methodology of common meaning and find the opportunity to overcome the crisis of modern rule of law.This dissertation is divided into four chapters, about 38000 words.The first chapter is an overview of this paper, which introduces briefly the social background and theoretical origins of Unger's critical theory's producing. Any kind of theory is the result of a specific era; by right of his profound knowledge, Unger's independent ideology system uses and absorbs broadly the forward theories of classical schools in sociology, law, political science, philosophy and other social sciences.The second chapter focuses on the origin of Unger's critical theory's academic problems, and this part is the base of further explanation of this paper's main part. Unger's writings have a magnificent system, whose contents are numerous and jumbled, and the core goal of these writings concentrates on the total criticism to liberal ideology. During this process,the classical social theory is a unavoidable barrier. Unger holds that liberalism is not only an ideology, but also a social order, and that criticisim on theory is not a substitute for one on reality. Legal order is the external appearance of the classical social theory in liberal society, so Unger concludes, that his criticisim on modern rule of law is to set up a target for criticisim on the classical social theory.The third chapter is the main part of the paper, which presents the core viewpoint of Unger's critical theory. Unger's critical theory's producing mostly benefits from the historical condition under which traditional Western liberal society is gradually transforming into modern welfare-corporate state. Drastic changes in postliberal society make a corresponding impact on people's Social Consciousness and behavior, and in the extensive practical fields, people challenge fiercely in the manipulative posture of Individualism. According to"the concept of historical development from natural order to artifact society", Unger in his related works explains a social law of the corresponding correlation between social ideology and social formation for us, and further, analyses the essence of the crisis of modern rule of law.The fourth chapter is the supplement of the main part of the paper, which highlights Unger'unique methodology for legal order criticising. Unger considers, that with the great era changes, the disadvantages of the theoretical analysis model of"binary opposition"(between order of ideas and order of events) in the classical social theory have been exposed. For this reason we need to create a new kind of methodology and concept-analyzing methods, which are not only total criticising weapons, but also theory-reconstructing tools.