Legal Analysis as Institutional Imagination*
ROBERTO MANGABEIRA UNGER
Legal analysis can become a master tool of institutional imagination in a democratic society. To see why and how it can serve this purpose we must begin by understanding what is most distinctive about law and legal thought in the contemporary industrial democracies. In this effort no contrast is more revealing than the comparison of the substantive law and legal methods of today with the project of nineteenth-century legal science and the law of nineteenth-century commercial economies.
Consider how the law and legal thought of today may look to a future student who tries to identify its deepest and most original character within the larger sequence of legal history. Suppose that we use in this endeavour less the search for recurrent doctrinal categories and distinctions that Holmes pursued in The Common Law than the reciprocal reading of vision and detail von Jhering offered in The Spirit of the Roman Law. The latter method rather than the former respects the place of law between imagination and power, and connects the self-understanding of legal thought to the central tradition of modern social theory founded by Montesquieu. Viewed in this light, the overriding theme of contemporary law and legal thought, and the one defining its genius, is the commitment to shape a free political and economic order by combining rights of choice with rules designed to ensure the effective enjoyment of these rights. Little by little, and in country after country of the rich Western world and of its poorer emulators, a legal consciousness has penetrated and transformed substantive law, affirming the empirical and defeasible character of individual and collective self-determination: its dependence upon practical conditions of enjoyment, which may fail.____________________