This lecture is based on the readings for law and sociology from Curran and Takata's Sociology of Law Handbook. We caution you to remember that these are our interpretations of Habermas. Basic Introduction to Habermas

Mark Yesia asked specifically that I address "legitimacy and justice." To me, that means that Mark is asking that I speak of the intersection of these two concepts. Legitimacy, as I interpret what Habermas means by that term, is a good faith hearing granted to all validity claims brought by those who would be governed by the rules of the group seeking legitimacy. That means that every citizen would be heard. And we add the requirement that those who are expert in the areas the validity claim is being made would be held to the higher standard of aiding in the accurate statement of that claim within the context most likely to be understood by the group.

Legitimacy in this sense would require that positivists (who believe there is some "reality" out there which is knowable) would aid those who believe that reality is socially constructed and perceived differently by different people to express their perspective in terms that positivists understand and regularly use, so that problems of the language of discourse need not prevent reasonable good faith communication. This would guarantee not acceptance of each others' claims, but at least an understanding of what those claims are.

Given this definition of legitimacy, I shall now try to relate legitimacy to justice. To do so, I turned to Rawls' reading of justice:

"Now let us say that a society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice. That is, it is a society in which

1. everyone accepts and know that the others accept the same principles of justice, and
2. the basic social institutions generally satisfy and are generally known to satisfy these principles.

   In this case while men may put forth excessive demands on one another, they nevertheless acknowledge a common point of view from which their claims may be adjudicated. If men's inclination to self-interest makes their vigilance against one another necessary, their public sense of justice makes their secure association together possible. among individual with disparate aims and purposes a shared conception of justice establishes the bonds of civic friendship; the general desire for justice limits the pursuit of other ends. One may think of a public conception of justice as constituting the fundamental charter of a well-ordered human association."

   [pp.4-5] of Rawls' Theory of Justice, as quoted in Stanton's "Rawl's Theory of Justice," pp. 169 ff., in Reading Rawls, ed. by Norman Daniels, Stanford Series in Philosophy, Stanford University Press, 1989.

Several sections of Rawls' account of "a well-ordered human association" in the interest of justice, involve legitimacy as we have defined it.

• "well-ordered" implies structure or order. Depending on the context of usage, I should assume that "well" here implies consensual. Indeed, I see very little of the conflict approach.

• Rawls also refers to "a public conception of justice," wording which seems to imply the positivist or modernist idea that there is such a "public conception" if we can simply agree upon it.

• Scanlon, (op.cit., at p.171) points out that Rawls' Original Position suggests that people will choose this well-ordered association without a discussion of the underlying forces and motivation. This is a major critique of Rawls' position.

  Given that this is a SUMMARY, I leave you to read Habermas and Rawls and Scanlon. My own conclusion is that even though Rawls describes a strongly pluralistic society, I, too, feel that we are not today starting with Rawls' Original Position, however likely or unlikely that may be. Given the present not-very-well-ordered world, I like Scanlon's description of Rawls' position that "a person's good is to be identified not with the particular goals and commitments which he may at any given time have adopted but rather with his continuing status as a rational agent able to adopt and modify these goals." (Scanlon, op.cit., at p.171)

  If we consider that justice is that commitment to our collective "continuing status" as members of a cooperative association, "able to adopt and modify [its] goals," as we can our own goals, then the right to have our validity claims about that cooperative association heard in good faith is essential to the legitimacy of the association itself.

  As I understand them legitimacy and justice are intimately bound together.

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