Unger’s views should remind you of American Legal Realism, but there are differences. He is politically more radical than most of the realists were and, more importantly for our purposes, he frames his criticisms of other views in a way that makes their application to people like Hart and Dworkin clearer. You should watch for two things in this regard, (i) his rejection of the distinction between legislation and adjudication that appears in different ways in both Hart and Dworkin and (ii) his critique of the idea of a coherent moral perspective underlying the law, an idea that is crucial for Dworkin’s theory. It may help in making the comparison to think of what Unger calls a “doctrine” as something like what Dworkin calls an “interpretation.” (Indeed, the term “doctrine” is often applied in legal writing to the sort of theory of a specific branch of the law that each of the six interpretations Dworkin considers attempts to provide for the law on emotional damages.)

Your assignment includes essentially the whole of the introduction and first chapter of a short book as well as the first section of the second chapter. Unger’s writing tends to become somewhat more concrete as you move through this part of his book, so some of the abstract points that may seem mysterious early on may be clarified later; but, in general, you should expect this to be somewhat more difficult reading than Dworkin or Hart.

• In his introduction (pp. 295-297), Unger introduces the ideas of “formalism” and “objectivism” around which his discussion is structured. His effort to distinguish what he means by “formalism” from a more ordinary sense is, in part, an effort to distinguish his views from those of the American Legal Realists. Do you think his concept of formalism applies to Hart (who used the idea of a penumbra of uncertainty in rules to help positivists escape the charge of formalism in what Unger calls the conventional sense of the term)? It is worth asking also whether formalism, as Unger understands it, applies to Dworkin and, if so, whether Dworkin would be an objectivist in Unger’s sense. Notice that, in asserting the dependence of formalism on objectivism, Unger alludes to one alternative to a legal system that exhibits a coherent moral order—namely, a patchwork of independent compromises among competing interest groups.

• The first chapter (pp. 297-305) provides a sketch of Unger’s arguments against formalism and objectivism. Unger’s criticism of the former is mainly that it presupposes objectivism, and his argument for this claim is somewhat analogous to Dworkin’s argument for the centrality of principles in the law; consequently, we will probably focus on his argument against objectivism. He does no more here than point to the basic shape of such an argument, so you will need to ask yourself what details would need to be supplied to actually make an argument and whether you think they could be provided.

In the final section of chapter 1 (pp. 302-305), Unger discusses two contemporary lines of legal thought. Unger would probably classify Dworkin in the “rights and principles” school. I doubt he had Dworkin primarily in mind in what he says about that school, but you should think how what he says might apply to Dworkin. The “law and economics” school holds that a central function of the law is to allocate rights in a way that leads to economic efficiency. You will see some examples of that sort of thinking later in the course, but you’ve already encountered one example in Dworkin: his interpretation (3) of the law on emotional damages was stated with that school in mind.

• The topic of the first section of Unger’s second chapter (pp. 305-310) is devoted to the idea of “deviationist doctrine.” Ask yourself what form this takes (in particular, what Unger means by “internal development”) and compare it both to Dworkin’s views and to the views of the American legal realists.

If your are curious about the rest of Unger’s discussion, you can find an earlier version on JSTOR in the Harvard Law Review, vol. 96 (1983), pp. 561-675. Although the two versions differ in significant ways, their structure is quite analogous. In particular, the section titles are the same and paragraphs tend match up one to one.