The Critical Legal Studies Movement by Roberto Mangabeira Unger

Author:Roberto Mangabeira Unger
Language: eng
Format: epub
Publisher: Verso Books

The Organization of Government

Consider first the organization of government and of the contest over the mastery and uses of governmental power. The devices for restraining governmental power may also tend to deadlock it; they may establish, by intention and design rather than by logic or necessity, a connection between the liberal commitment to fragment power and the conservative desire to slow politics down. They may establish a rough equivalence between the transformative reach of a political project and the severity of the constitutional obstacles to its execution. A constitutional design of this sort helps form, and reinforces once formed, the interests and preconceptions that crystallize around any stabilized social situation. As a result, the struggles of official politics fail to provide sufficient occasion to disrupt further the background structure of division and hierarchy in social life, and thus give rise to the facts emphasized by the earlier, internal objections to the established versions of democracy. Yet, and this is the heart of the problem, every attempt to revise the institutional arrangements that exercise this structure-preserving influence seems to undermine the restraints upon governmental power that secure freedom. A successful resolution of this dilemma must provide ways to restrain the state without effectively robbing politics of its transformative potential.

Such a resolution might include the following elements. First, the branches of government should be multiplied. To every crucial feature of the social order there should correspond some form and arena of potentially destabilizing and broadly based conflict over the uses of state power. The organization of government and of conflict over governmental power should provide a suitable institutional setting for every major practical or imaginative activity of transformation. (Recall, for example, those more ambitious varieties of injunctive relief afforded by present-day American law that involve large-scale disruptions or reconstructions of existing institutions. Such relief should not fall under a cloud because it fails to fit either the judicial or the legislative contexts in the contemporary state.) Different branches of government might be designed to be accountable to popular sovereignty and party-political rivalry in different ways.

Second, the conflicts among these more numerous branches of government should be settled by principles of priority among branches and of devolution to the electorate. These principles must resolve impasses cleanly and quickly. They should replace the multiple devices of distancing and dispersal (including the traditional focus on “checks and balances”) that seek to restrain power through the deliberate perpetuation of impasse.

Third, the programmatic center of government, the party in office, should have a real chance to try out its programs. That a constitutional concern for decisive innovation need neither leave state power unchecked nor injure the vital rights of the opposition is shown by the experience of many European constitutions since the First World War. The significance of this three-point program of governmental reform becomes clearer when seen against the double background of an economic order that democratizes the market economy and of a regime of rights that strengthens the individual without rigidifying society.

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