제도적 상상력으로서의 법문석-Roberto Unger의 법이론을 중심으로-

The main concern of this article is whether social theories and legal theories can play roles as alternative theories to overcome the limitations of liberalism. To study that problem, this article focuses on Roberto Unger's writings, mainly because he is a well-known member of Critical Legal Studies Movement which has criticized the liberalism. Today, the harmful effects of neo-liberalism are extending all over the world. The social democratic programs against those effects have been started to accept elements of neo-liberalism. Ultimately, social democracy comes to loose its sight of the original ideal. Most social theories, however, have not been able to suggest credible alternatives. Consequently, social theory that can play a role as an alternative theory is urgently necessary. Up to these days, it has been regarded that legal theories contribute to the social stability. Accordingly, most legal theorists have been interested much more in “the law which rationalize the harsh realities" than “the law which behave." Nevertheless, the law has played very important role in making or changing social structure, and perhaps it will probably do. On account of these reasons, the new method for legal analysis comes to be indispensable. Unger suggests “anti-necessitarian social theory" as an alternative theory to overcome above circumstances. In that social theory, he proposes the programs to break through both neo-liberalism and social democracy, and these programs are designed for “empowered democracy." Programatic alternatives that Unger sets up, when compared with other social theories' alternatives, have speciality in the aspects of their dynamic character. The core motive of his social theory is to get over the “false necessity" of structures and institutions. Unger's legal theory gives a concrete form to his social theory above. He criticizes the legal analyzing methods producing false necessity. Unger calls these legal methods “rationalizing legal analysis." He also suggests “institutional imagination" that can surmount rationalizing legal analysis. The main subject of this article is this Legal Analysis as Institutional Imagination. Unger's social theory and legal theory present us a shining future. The method, “institutional imagination" can be connected to “academics of legislation" or “legisprudence" that is getting more important in the post-liberal society. His theories also have important meanings relating to Korean legal and political situations.