Hannah Arendt, Roberto Unger, and A Lawyer’s Philosophic Theory of Action

-- By JustineHong - 11 Mar 2022

Introduction

Hannah Arendt’s Origins of Totalitarianism and Roberto Unger’s Law in Modern Society provide different philosophic bases for developing a lawyer’s theory of social action. Arendt, by underscoring that fundamental rights, far from being “natural” or “innate,” must instead be recognized by a community to exist, calls on lawyers to provide representation to stateless people. On the other hand, 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 and unjustified. His work thus calls on lawyers to address unjust societal inequalities by expanding access to intellectual capital. Ultimately, however, 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: The Need for State Recognition of Fundamental Rights

A central argument of Origins of Totalitarianism is that human rights, far from being “natural” or “inalienable,” require state recognition in order to exist. In particular, Arendt states: “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 (and that means to live in a framework where one is judged by one’s actions and opinions)” (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. State or community recognition is necessary for fundamental rights to exist. The text thus corresponds to the legal realist trend emerging at the time that law derives from social interests and public policy, rather than from “natural law” (Cohen, Transcendental Nonsense and the Functional Approach). In terms of its relevance to a lawyer’s theory of social action, Origins of Totalitarianism forces lawyers to think beyond black-letter doctrine and seek to ensure that people outside state recognition have the legal representation they need. Thus, a lawyer’s theory of social action may extend even beyond the law itself. Such social action contrasts with that of a lawyer like Robinson from 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 as a matter of course” (Arendt 296). Today, refugee crises remain common, a particular example being the current situation in Europe where Roma refugees are forced to camp at train stations throughout Europe because they, unlike other Ukrainians, have been denied visas. Lawyers should assist refugees who want to be recognized by the law so they can exercise their fundamental rights like the right to a home and the right to work.

Unger: Modern Estrangement of Morality from the Rule of Law

Like Arendt, Unger represents the legal realist trend in emphasizing the estrangement of morality from law and from the modern social order, but his theory presents a different philosophic basis from which to develop a lawyer’s theory of social action. Unger argues 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 and unjustified. 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).

The Knowledge Economy as a Solution to Unjust Inequalities

Another solution, presented in Unger’s more recent work The Knowledge Economy, is to address the inequality itself by expanding 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, autonomy, 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 how capital and other means of production are allocated [such as alternative organizational forms to the standard corporation]; more collaborative relations of workers to colleagues and superiors; and education reform” (FT). A lawyer’s theory of social action would correspond to such concrete measures articulated by Unger. Having the propositions from Law in Modern Society as its philosophic basis, the theory of social action could implement governmental advocacy, workers’ rights, labor law, pro bono campaigns, and an expansion of access to legal counsel. Such legal measures could help expand the knowledge economy and address the widespread sense of arbitrariness and injustice in modern society.

Conclusion

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 to 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, because of their legal realism, their theories still provide a critical foundation upon which to construct a theory of social action.

Works Cited

Arendt, Hannah. The Origins of Totalitarianism. Houghton Mifflin Harcourt, 2011.

Unger, Roberto Mangabeira. Law in Modern Society: Toward a Criticism of Social Theory. The Free Press, 1977.

Displaced from its original context, this draft doesn't give the reader a reason to read. Substantively, the text amounts to "Nietzsche and Arendt agree on something abstract and not particularly striking." The reader has not been shown why she should care. Stylistically, the book-report language adds to th problem; it conveys no feeling, which means no motivation for a reader to engage. We don't want to read like a tour guide for undergraduates being frog-marched through material.

So the key to improvement is to add depth and context. To what question are these particular ideas attributed to Arendt and Nietzsche among the answers and why would it matter to anyone? Despite the publication dates of the reprints you mention these are not recent thinkers, nor is the conversation in which you are juxtaposing them one in which they are preeminent voices. So what is the larger discussion about? How is it relevant to what lawyers concerned with "human rights" do? I suppose the canonical compass points of entry are Rawls, Nozick, Dworkin and Unger. But for present purposes I think Roberto Unger's Law in Modern Society is probably the place to start.

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