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Introduction | |
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< | Oliver Wendell Holmes underscores that the law does not reflect morality, but instead studies ways to predict court decisions. Philosophers like Arendt and Unger, therefore, provide moral and philosophical context which may complement a law student's studies and assist the development of a theory of social action. For instance, Arendt’s account of stateless people provides a philosophical context for my interest in international human rights and refugee law. Moreover, Unger presents a historical progression among liberal societies in which morality becomes estranged from the rule of law, resulting in the widespread sense that societal inequality is arbitrary. His work thus calls on lawyers to address unjust societal inequalities by expanding access to intellectual capital. Ultimately, the works of both Arendt and Unger urge lawyers to look beyond legal doctrine and toward the social interests and public policy which shape law in contemporary society. | >
> | Holmes underscores that the law does not reflect morality, but instead constitutes a study of predicting court decisions. While one may believe, therefore, that philosophers have little role in developing a lawyer’s theory of social action, Hannah Arendt and Roberto Unger’s theories, while expressing a moral purpose, also reflect the socio-historical realities of the modern era. Because they are grounded in such realities, their moral and ethical principles are relevant in guiding lawyers in their practice. For instance, Arendt’s principle in Origins of Totalitarianism that a state or community must recognize fundamental rights in order for them to exist motivated me to develop my interest in human rights and international law. Also, Unger’s principle in Law in Modern Society that the solution to today’s unjust social inequalities is an expansion of access to intellectual capital motivates my own goal of expanding educational opportunities for others. Ultimately, the works of both Arendt and Unger urge lawyers to look beyond legal doctrine and toward the social interests and public policy which shape law in contemporary society. | | | Arendt: State Recognition of Fundamental Rights | |
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< | Origins of Totalitarianism argues that human rights, far from being “natural,” require state recognition to exist. In particular, the “calamity of the rightless . . . is not that they are not equal before the law, but that no law exists for them . . . We become aware of a right to have rights” (Arendt 295-7). In other words, unless a person belongs in a community like a state, he or she cannot not have “fundamental” rights like life, liberty, or equal protection before the law. | >
> | Origins of Totalitarianism expresses the key principle that human rights, far from being “natural,” require state recognition to exist. In particular, the “calamity of the rightless . . . is not that they are not equal before the law, but that no law exists for them . . . We become aware of a right to have rights” (Arendt 295-7). In other words, unless a person belongs in a community like a state, he or she cannot not have “fundamental” rights like life, liberty, or equal protection before the law. | | | | |
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< | In terms of its relevance to a lawyer’s theory of social action, Origins of Totalitarianism forces students to think beyond black-letter doctrine and to ensure that people outside state recognition have legal representation. Thus, a theory of social action requires extending protection beyond the law itself. In Lawrence Joseph’s Lawyerland, Robinson represents criminals, who are considered to be most deprived of rights in society. But Arendt indicates that even criminals, unlike stateless people, are still recognized by the state. “[Stateless people’s] freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys” (Arendt 296). Therefore, stateless people require even more fundamental protection than criminals.
Her account reminds me of the former ‘comfort women’ of WWII. I first learned about the women when, as a high schooler at an international school in South Korea, I visited the House of Sharing, a museum and refuge for the former ‘comfort women.’ Inspired by the exhibits, I volunteered as an English tour guide and oral translator for the women’s testimonies. Their experience attests to the horrors of war and the consequences of statelessness. Almost a century later, litigation for recognition and compensation for this human rights violation is still ongoing. Therefore, I hope to develop my interest in international human rights law to represent stateless people or other similarly vulnerable communities and prevent such atrocities from recurring. | >
> | Arendt’s account, in addition to contextualizing my prior exposure to human rights, motivated my decision to explore international law. Before reading Arendt, in high school I had volunteered as an English oral translator at the House of Sharing, a museum and refuge in South Korea for the former ‘comfort women’ of WWII. Arendt's account made me realize that their plight illustrated the extreme experiences of stateless people. Believing such atrocities should never recur, I developed my interest in international law as an undergraduate, conducting independent study of the Nuremberg Trials and spending a summer abroad with EU institutions. An underlying motivation throughout these experiences was that no one should struggle to have the right to have rights. In law school, I will continue to consider international legal issues with Arendt’s principle in mind. | | |
Unger: Modern Estrangement of Morality from Law | |
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< | Like Arendt, Unger emphasizes the estrangement of morality from law and from the modern social order. He argues in Law in Modern Society that the historical trend in which the rule of law becomes devoid of moral justification results in a widespread modern perception that societal inequality is arbitrary. Additionally, in modern liberal societies, people tend to view social consensus as a product of the interests of dominant groups (Unger 169). Therefore, Unger emphasizes that in order to defeat inequality, society must foster greater confidence among people as “expressions of a shared human nature” (240). One way to achieve this greater confidence is to restore a kind of universal consensus about social life, where social practices represent an “immanent order” rather than arbitrary choices (240). | >
> | Like Arendt, Unger emphasizes the estrangement of morality from law and from the modern social order. Upon showing the historical trend in which the rule of law became devoid of moral justification in liberal societies, Law in Modern Society articulates the resulting principle that for many people today, the pursuit of the good fails to align with the pursuit of profit. This principle is the consequence of the widespread perception that social inequality is arbitrary, and that social consensus is merely the product of dominant interest groups, rather than any inherent justice (Unger 169). | | |
The Knowledge Economy as a Solution | |
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< | Another solution for such unjust inequalities, presented in Unger’s more recent work The Knowledge Economy, is the expansion of the knowledge economy. Unger argues that the knowledge economy is the most innovative way to organize economic activity, but it remains trapped in small segments of society. On the one hand, the knowledge economy represents a freedom from hierarchy because successful knowledge production requires collaboration and open exchange of ideas. It also involves a freedom from machine-like routine embodied by industrial mass production, instead operating on creativity and spontaneity. Expanding the knowledge economy would require a reorganization of capital and other means of production, such as alternative forms to the standard corporation, more collaborative relations among workers and superiors, and educational reform. | >
> | According to Unger, a solution for such arbitrary inequalities is the expansion of the “knowledge economy," a system of consumption and production based on intellectual capital, such as the value of its workers' knowledge or intellectual property. Although it is the most innovative way to organize economic activity, the knowledge economy remains trapped in small segments of the population. Ways to expand it include a reorganization of capital and other means of production, more collaborative relations among workers and superiors, and educational reform. | | | | |
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< | Such concrete measures articulated in The Knowledge Economy provide guideposts for a lawyer’s theory of social action. Having the propositions regarding modern injustice and arbitrariness demonstrated in Law in Modern Society as its philosophic basis, the lawyer’s theory could implement governmental advocacy, workers’ rights, labor law, pro bono educational campaigns, and expansion of access to legal counsel. These measures would help expand the knowledge economy and address the problems outlined in Law in Modern Society. As a first-generation law student, second-generation college graduate, and a first-generation immigrant, I have benefited significantly from the knowledge economy and look forward to giving back to communities from which I have benefited. Although Unger’s solutions are much easier said than done, a coherent framework of the legal issues arising from inequalities and isolation is indispensable for assisting underserved communities. | >
> | Unger’s account of the knowledge economy motivates my desire to contribute to its expansion. As a first-generation law student and American, I attribute my current status in large part to my access to intellectual capital. Furthermore, my parents transcended class through education; they are both first-generation college students who grew up under South Korea’s military dictatorship lasting until 1988. About a decade later, they were able to move to the US for a job opportunity. Therefore, as part of a family which transcended class and national barriers largely thanks to education, I am sensitive to the need to expand the knowledge economy. | | | | |
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> | However, I am also aware of potential difficulties. Because there are no lawyers in my family, I lack a professional network in either Korea or the US, apart from fellow law students and several non-lawyer family friends. Hence, I fear that no one would be able to provide assistance if I were to establish my own practice. Prior to law school, I was excited to forge my own path; indeed, I was motivated to apply primarily because no one encouraged me to do so and no one around me was a lawyer. But, after 1L year, I am more hesitant to establish my own practice, at least immediately after graduation, because of the overwhelming 1L curriculum and the administration’s clear division between Big Law and public interest, with nothing in between. My goal is that with the infantilizing 1L year over, I will develop a more coherent idea about my future. Above all, given my own background, Unger’s account reinforces my belief that lawyers should give back to their communities by facilitating access to intellectual capital. | | | Conclusion | |
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< | Arendt and Unger present alternative philosophic bases for a lawyer’s theory of social action. Arendt’s argument that human rights are meaningless without the recognition of a state underscores the plight of stateless people who lack the basic legal status even accorded to criminals. Unger’s argument, on the other hand, highlights the estrangement of morality from the rule of law and the consequent arbitrariness pervading modern society. His framework draws attention to the need for a universal consensus or for a solution to unjust inequalities, such as the knowledge economy. Although both theorists are primarily concerned with philosophy rather than social science, their theories still provide a critical foundation upon which to construct a theory of social action. | >
> | Arendt and Unger present alternative philosophic principles to guide a law student’s future practice. Arendt’s argument that human rights are meaningless without the recognition of a state contextualized my own experience with human rights victims and motivated my interest in international law. On the other hand, Unger’s argument highlighting the estrangement of morality from the rule of law, the consequent social inequality, and the expansion of the knowledge economy as a solution to these issues motivates my goal of contributing to such a solution in my practice, even if that means diverging from the majority path. Overall, although both theorists are primarily concerned with philosophy rather than social science, their theories still provide guideposts with which to forge a legal practice. | | | |
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