"Whenever the certainties of interactional law begin to dissolve, human beings seem relegated to the situation of the nonhuman primates-denied the experience of an unreflective order, they are yet powerless to create another. But there is a crucial difference between the nonhuman and the human predicament: what other primates encounter as an unspeakable fate, men must confront in the terror of consciousness”.~ Roberto M. Unger
I
Introduction
The "rule of law" is not a universal ideal but a historically specific legal form born from the unique conditions of liberal society. Roberto Unger argues that liberal society creates an unsolvable crisis of legitimacy, which the rule of law attempts to manage through a commitment to formal legality, the impartial application of general and autonomous rules. However, as liberal societies transition into a post-liberal phase, the rise of the welfare state and corporatism prioritizes substantive justice and direct social management, making legal formalism structurally untenable. This normative turn toward ideals of equity and solidarity systematically erodes the rule of law, dissolving its foundational commitments to generality and autonomy. This transformation represents a fundamental challenge to the modern legal order, posing risks to individual freedom while simultaneously presenting opportunities for new forms of community that might reconcile liberty with social cohesion. A profound and intensifying conflict lies at the heart of modern Western legal systems: the tension between formal legality and the demand for substantive justice. Formal legality, the animating ideal of the rule of law, promises neutrality through the impartial application of general, autonomous rules. Substantive justice, by contrast, demands that law produce fair outcomes in particular cases, a goal requiring discretion, flexibility, and a focus on equity. This blog’s central thesis is that the rule of law is not a timeless principle but a contingent historical product, designed to manage the specific political predicament of liberal society. As these societies have evolved into a "post-liberal" form, characterized by the ascendancy of the welfare state and corporatism, the foundational commitments to legal formalism have begun to dissolve. This shift toward the ideals of equity and solidarity represents a fundamental alteration in the relationship between law, state, and society, carrying profound political and philosophical implications that compel a re-examination of the modern legal order and its future.
II
Rule of Law: A Historically Contingent Ideal
Before diagnosing its decline, it is analytically crucial to deconstruct the rule of law not as a universal ideal, but as a specific, historically-produced legal form with distinct characteristics and preconditions. In the framework developed by Roberto Mangabeira Unger, this form is termed the “legal order”, and it stands in sharp contrast to other modes of social regulation, namely, customary law and bureaucratic command. Grasping its unique nature is the necessary first step toward understanding the societal forces that now threaten its existence. Law is not a monolithic entity; it manifests in different forms depending on the structure of the society it governs. Unger’s categorisation of law clarifies the unique character of the legal order by contrasting it with its predecessors and alternatives. The legal order, as categorization reveals, is an unstable hybrid. It borrows the public and positive character of bureaucratic law, its nature as a set of explicit rules issued by a state, while aspiring to a condition of generality and autonomy that distinguishes it from mere politics or administration. This aspiration toward a principled neutrality, however, is one it can never fully achieve, a failure rooted in the very societal conditions that gave rise to it. The legal order is a rare historical phenomenon, found in its most developed form only in modern Western societies. Its emergence, according to Unger's analysis, depended on the convergence of two specific and seemingly contradictory conditions. Firstly, Group Pluralism is the cause for the existence of a society with a relatively unstable and contested social hierarchy. In what Unger calls “liberal society”, no single group, be it an aristocracy, a monarchy, or a merchant class, occupies a permanently dominant position or is credited with an inherent right to rule. This creates a state of interest group pluralism where antagonistic social forces compete for power. In such a volatile environment, there is a profound need for a system of law that appears neutral and can accommodate competing interests, thereby limiting the power of any single faction. The legal order, with its promise of general rules applied impartially, provides this framework. Secondly, Higher Law, i.e., the widespread belief in a universal or divine law that stands above and serves as a standard for the positive law of the state. This "higher law" ideal, often rooted in a transcendent religion, posits universal principles of right and wrong established by God. This belief fosters the ideals of generality and autonomy by providing a basis for criticizing state law that is merely arbitrary or self-serving. Because the higher law is considered universal, it encourages the formulation of state laws that apply to all, reflecting a divine order that transcends particular social ranks and justifying the idea that law should be autonomous from the immediate political interests of the sovereign. It was the specific convergence of these forces that proved decisive. As Unger asserts, "Neither group pluralism nor the belief in higher law, justified by a transcendent religion, would have been enough by itself to produce a legal order... But their combination in modern European history could bring about what either of them alone was powerless to create". Having established the unique and contingent origins of the rule of law, the analysis must proceed to the specific societal crisis it was designed, however imperfectly, to resolve.
III
The Liberal Predicament: Power, Legitimacy, and the Promise of Impersonal Law
The rule of law did not emerge in a vacuum but as the primary response to a fundamental paradox at the core of liberal society. Understanding this "liberal predicament" is the key to seeing why the rule of law was a brilliant but ultimately doomed solution. The paradox is the profound tension between an official ideology celebrating individual freedom and the social reality of a hierarchical order that lacks the traditional, self-evident legitimacy of aristocratic or tribal societies. In contrast to the rigid rank order of aristocratic societies, the hierarchy of liberal society is, in Unger's words, "relatively open and partial”. This fluidity creates a critical gap between the existence of domination and its felt legitimacy. Because the rank order is not seen as part of the natural or divine order of things, it appears contingent, arbitrary, and ultimately unjustifiable. This leads to what Unger terms a "vicious (or liberating) circle of demoralization". As citizens begin to perceive the power of private institutions like corporations as illegitimate, they lose faith in the supposedly neutral laws that protect and enable that power. This loss of faith in the law, in turn, further delegitimizes the entire social hierarchy, creating a feedback loop of political cynicism. The weakening legitimacy of the rank order undermines trust in social conventions, and as consensus on values erodes, the existing hierarchy loses its moral foundation. The result is a profound social and psychological predicament: the experience of being "surrounded by injustice without knowing where justice lies". The rule of law can be critically evaluated as liberal society's primary, though ultimately self-defeating, attempt to resolve this crisis of illegitimate power and decaying consensus. This legalistic solution rests on two crucial assumptions. The first assumption is that the most significant forms of power can be vested in the state, which is imagined to stand above the fray of private social hierarchies. The second is that this concentrated governmental power can be effectively constrained by a system of general and autonomous rules, thereby making it impersonal and preventing its use for private or factional advantage. Unger's analysis systematically debunks both assumptions. First, significant and oppressive forms of power remain entrenched in the "private" sphere, in the hierarchies of the family, the workplace, and the market. The formal equality promised by the legal order does little to address these deep-seated inequalities. Second, the idea that rules can ensure neutrality is a fiction. Lawmaking procedures are inevitably biased by the unequal distribution of power in society, and judicial interpretation relies on a background of shared understandings that, in liberal society, itself lacks legitimacy. The implications of this failure are profound. By failing to address private power, the rule of law allowed those concentrations of power to grow to the point where the state was ultimately forced to become a welfare and corporatist manager simply to mitigate their social consequences. The state had to intervene directly in the economy and society, a role for which formal rules were ill-suited. In this way, the rule of law's core failure ironically created the very conditions for the post-liberal turn that would lead to its own structural disintegration. As liberal society evolves into its "post-liberal" successor, its core legal and political structures undergo a profound transformation. In this new societal form, the rule of law’s defining ideals, generality and autonomy, are progressively abandoned. This disintegration is not random but is driven by two powerful and interconnected historical trends: the rise of the welfare state and the consolidation of corporatism. The first trend undermining the legal order is the expansion of the state's role in managing the economy and providing for social welfare. As the state takes on these managerial responsibilities, it finds formal, general rules to be blunt and inadequate instruments. This leads to two significant changes in the character of law: (a) Proliferation of Open-Ended Standards: In place of precise rules, legislation begins to rely on open-ended standards and general clauses. Vague mandates to act in the "public interest", to prevent "unconscionable contracts", or to maintain "competitive markets" become common, requiring agencies and courts to engage in ad-hoc balancing that resists codification into general principles. (b) Shift to Purposive Legal Reasoning: The style of legal justification shifts from a formalistic to a purposive or policy-oriented approach. Instead of deducing a conclusion from a pre-existing rule, judges are asked to interpret rules in a way that best achieves a given policy goal. This erodes legal generality because the application of a rule becomes dependent on changing circumstances and policy objectives, undermining the stability of individual entitlements.
The second, and arguably deeper, trend is the rise of corporatism, which fundamentally effaces the boundary between the state and society. In the liberal model, a clear distinction between public law (governing the state) and private law (governing individuals) was essential. Corporatism dissolves this distinction, as large private organizations, such as, corporations or labor unions, take on quasi-public powers, while the state becomes an arena for bargaining among these powerful groups. This development challenges not just the rule of law but the more basic form of bureaucratic law itself by attacking its public and positive character. This happens in two ways: Erosion of Public Law- As the state ceases to be a distinct entity standing apart from society, the traditional distinction between public and private law becomes obsolete. Challenge to Positive Law-More profoundly, this trend fosters the growth of a "spontaneously produced normative order of non-state institutions". The internal regulations and customs of large corporations begin to challenge the positive, public law of the state as the primary source of social order.
Taken together, the welfare and corporatist trends are manifestations of a single underlying shift. They represent a fundamental move away from a state that formally referees the conflicts of private power to one that actively manages social and economic outcomes directly. It is this managerial imperative that renders the formal legality of the rule of law increasingly untenable.
IV
The Ascent of Substantive Justice: Equity, Solidarity, and the Challenge to Formalism
The erosion of legal formality is not a process of random decay but a coherent movement driven by a profound normative shift. As the perceived injustices of the liberal order become more apparent, society turns toward the ideals of equity and solidarity as a remedy. This pursuit of substantive justice, of fair outcomes and communal responsibility, places it in direct and irreconcilable conflict with the core tenets of legal formalism. Legal "formality" is a system of justification in which decisions are validated by reference to pre-existing, general rules. It is a mode of reasoning that deliberately brackets the question of fairness in a particular case, prioritizing instead the correct application of the rule. This approach seeks to remove subjectivity from judgment by making the law a self-contained system. In direct opposition stands the ideal of "equity", which Unger defines as the "intuitive sense of justice in the particular case". Equity makes the specific circumstances and moral claims of the individuals involved central to the legal decision, placing them above the abstract demands of a general rule. The post-liberal trends toward open-ended standards and purposive reasoning represent a clear movement away from formality and towards equity, compelling decision-makers to engage in the kind of ad-hoc balancing of interests that resists codification. Another ideal challenging formalism is "solidarity". Described by Unger as the "social face of love", solidarity is a sense of shared responsibility for others that transcends the narrow, formal entitlements conferred by a legal order. It represents a commitment to community that cannot be satisfied by a system of atomized individual rights. No system of formal rules can adequately express the demands of solidarity. A formal legal order treats entitlements as objective "powers" to be exercised at the discretion of the right-holder. Solidarity, in contrast, requires a power-holder to constantly question the use of those entitlements based on the needs of others in a specific context. This demands a case-by-case judgment that "cannot be predetermined by rules". The primary legal standard through which this ideal enters and subverts the formal law of contracts and obligations is the concept of "good faith", which forces parties to consider the impact of their actions on others, directly challenging the radical individualism at the heart of legal formality. The ascent of these substantive ideals raises a critical question: as the framework of the rule of law disintegrates, what future awaits law and society?
V
Conclusion: Beyond the Rule of Law?
The decline of the rule of law is a central and defining feature of modernity. It signifies the unraveling of a specific legal form that arose to manage the contradictions of liberal society but proved incapable of resolving them. The movement from formal legality toward substantive justice, driven by the welfare and corporatist transformation of the state, marks a fundamental turning point. As we look beyond the disintegrating legal order, the future of law and society appears fraught with both peril and promise, a duality captured in Unger's two competing metaphors for our historical trajectory. The first possibility is that of the closed circle: a regression to a new form of tribalistic custom. In this scenario, the erosion of general and positive law leads not to a higher form of community but to the sanctification of the practices of dominant groups, stifling dissent and sacrificing the hard-won gains of individual freedom and critical transcendence. This path leads to a society of unreflective adaptation, what Plato called the "City of Pigs". The second, more hopeful, possibility is that of the spiral: the emergence of a new normative order that reverses direction without returning to its starting point. This path envisions a future that reconciles the achievements of liberalism with the demands of community. It seeks a social order that can harmonize individual freedom with genuine solidarity, and preserve the power of transcendent criticism while fostering a sense of an immanent, shared moral order. This is the quest for a society that moves toward the "Heavenly City", where justice is an expression of the moral language of humanity. The path that will ultimately be taken is not a matter of legal theory alone. It will be determined by the political and social struggles that are destined to define the post- liberal era, as we confront the challenge of building a just and free society without the certainties, however illusory, that the rule of law once seemed to provide.
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