By Roberto Mangabeira Unger
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Extra resources for Law in modern society : toward a criticism of social theory
Instrumental rules are treated by the individual as one more factor to be taken into account in his calculus of effi ciencies. 1 8 This means that he will comply with the rules only to the extent that his own goals are better served by compli ance than by disobedience. Consequently, the sanction becomes the crucial part of the rule. The fear of the sanction operates to internalize the requirements of social order in the individual's reasonings about the most effective means to attain personal ends.
No amount of factual inquiry seems sufficient to prove the truth of a general con ception of social order. The stage for the discussion of the problem of social order in classical social theory was set by a struggle between two traditions of thought. One of the traditions might be called the doctrine of instrumentalism or private interest, and the other the doctrine of legitimacy or consensus. Starting from very different backgrounds and concerns, most of the classic social theorists came to believe that the two modes of thought were inadequate, in the same way that they rejected both rationalism and historicism in their treatment of the problem of method.
7 Similarly, the Hindu sacred law (dharmaiastra) limited the prince's power to issue ordinances (kfatra) . 8 In a different way, the Roman ius civile acquired its own identity first by freeing itself from, and then by supplanting, the pontifical fas. And in the lace empire, an ever larger gap appeared between strict law (ius civile) and administrative discretion (the emperor's cogni tio extraordinaria ) . 9 These contrasts · reflected conflicts among priestly bodies, governmental authorities, and merchant groups, but they were also connected with more general tendencies, to be discussed in the next section.