39. What is Habermas' explanation for the need for law? (Habermas, p. 56) Habermas sees the system of law as the one into which citizens have direct feedback, the one which they control through the legitimacy of their willingness to participate in and to abide by its decisions. That system has developed what Habermas regards as a transcendent language that can understand the messages from the specialized sub-systems of administrative power and economic power, and, even more importantly, can encode messages back to those sub-systems, thus establishing some feedback from the citizenry. Habermas notes that ordinary language can pretty much decode whatever messages are sent by the sub-systems, but it cannot encode messages back that actually affect the sub-systems and can make them responsive to the social community. 40. What is Habermas' main quarrel with Rawl's theory of justice? (Habermas, p. 58-59) Rawls constructs his well-ordered society from scratch. His assumption is that the social integration mechanism for this well-ordered society springs from "the socializing force of just institutions." Well and good, surmises Habermas, but we are not starting from scratch. We must come up with a means of creating a well-ordered society from present institutions which are not synonymous with the just institutions of our imaginings. 41. What are the levels of theory construction Habermas refers to on p. 59, and how do they relate to grounded theory? Habermas is discussing Rawl's theory of justice. He speaks of a first level of theory construction in which we investigate expressions, data as we encounter them in a social setting, and then we try to discover the intuitive knowledge that led the social setting we are studying to come up with the expressions we encountered. That bears some semblance to grounded theory, where instead of making theories up in our heads, from our own perspective, we go out into the world, observe what is there as neutrally as we can, and then build our theory on what we have observed. Habermas then refers to a second stage of theory construction in which we examine the theory reflexively, that is examine the extent to which it fits in, predicts, works within the context. This piece Habermas describes as trying to explain how the theory works better than our common sense. By clarifying concepts in our theory, we can suggest refinements to our common sense that it can accept and confirm, where these refinements might not have occurred nearly so efficiently in the normal scheme of things without theoretical intervention. This is one of the reasons we need sociology. 42. What use does Habermas see for Rawls' "overlapping consensus?" (Habermas, p. 60) Habermas suggests in his reading of Rawls that the concept of overlapping consensus, or those core areas in which the many pluralistic groups can agree, guaranteeing some social integration, is most important to establish some means by which existing institutions can be brought to the reform levels necessary to Rawls' well-ordered society. Habermas notes on p. 61 that this will indeed be a narrow consensus, for there is little on which we can all agree. 43. How does Habermas define "postmetaphysical" on p. 60? As declining to take sides in the "competing forms of life and lifeworlds." 44. On what grounds does Habermas defend Rawls' theory of justice? (Habermas, p. 62) Habermas says that Rawls' approach is not simply historical, within the framework of justice typical to the U.S. He claims that Rawls really has attempted a philosophical justification for his theory of justice, and the fact that Germany has no like historical experience does not invalidate the justification. Note that Rorty, Habermas, and Rawls freely disagree with each other over the basic concepts underlying justice. Perhaps this is one good reason you should not be too worried if you have difficulty making up your mind who's right? Who knows? We'll talk about this more in the next section on evaluating texts. 45. What is the challenge faced by the development of a theory of justice in the U.S.? (Habermas, p. 63) U.S. history supports one of the best-known models of modern democratic society. We run the danger of any theory we develop out of this experience being charged with a mere historical description of this felicitous event in history. Habermas mentions that Dworkin would not want his theory to owe its origins merely to some "traditions we just happened to inherit." Along these same lines Rorty's criticism of Rawls was viewed by Habermas as too harsh. Habermas acknowledged that Rawls' theory of justice might be equally applicable to Germans, even if they had not had the opportunity to experience the conditions. Those who are attempting to flesh out and analyze the theories of justice, legitimacy, social solidarity, we investigate here mean to establish validity claims that go beyond the borders of any one State and its historical experience. 46. What is the methodological approach Habermas discusses for sociology to examine legitimacy of the legal system? (Habermas, p. 69) Habermas describes a two-pronged methodological approach: from above, and from below. From participants' view: Sociologists need to explore the perspective of the participants: judges, lawyers, client, citizen. What are these participants normative expectations of the system? What are their perceptions of the legitimacy and validity of the law as it works for them? Habermas calls this a reconstructive analysis. From an observer's view: Sociologists need to explore all beliefs held about the system, about "legitimacy, interest positions, sanctions, and circumstances." Habermas calls this an empirical analysis. Habermas is emphasizing the duality of approach here between an objective evaluation of the positive law as enacted and enforced and a subjective evaluation of people's perceptions of the legitimacy of the system. Habermas traces this concern through many social theorists who have dealt with the law as a social system. 47. What contrast does Habermas see in Weber's and Parson's approach to the law? (Habermas, p. 74) Weber conceives of the law as part of the political system. Parsons conceives of the law as part of social solidarity. Note how these two conceptions reflect at least on some level, Habermas' concept of tension in the law. The political system deals with the positive law, its enactment and enforcement. The subjective commitment to the legitimacy and justice of that law is what Habermas sees as a mechanism of social solidarity. Look for such connections as you read. You may occasionally distort Habermas' meaning, as we may have in this instance. But it is your application of the underlying theory to the practice in the world around you that will enable you to actually use the developments these theories afford us. Remember that common sense does not always come up with these connections on its own, and that one of the roles of theory is to make reasonable inferences that common sense can recognize and adopt. (Q. 41, Habermas, p. 59) Notes on Evaluating Texts and Authorities In Question 47 we addressed again the issue of common sense. Common sense matters. You have been using your intelligence for many years. It has taken you this far. It's a good and useful tool. Habermas has done a good job at showing you that academic sense is not at war with common sense. It builds on common sense. It offers its input to common sense, for you to judge. Barbara Christian once said that a writer without an audience just disappears. A thinker whose thoughts have no common sensical audience to reach, faces the same fate. Scholars are the experts of the common sense world. Without that world they have no audience for their expertise. There are all sorts of tensions built into this relationship between common sense and academic sense. Tensions whose resolution may solidify the social integration between the town and the gown. One issue that we deemed important for this course was our choice of an original source as a text book. How does the way that Habermas builds his own system through those of preceding sociologists remind us that we want occasionally to go to original sources, such as Habermas' text in this course? First of all, theorists generally have different perspectives. Their readings of each others' work involves their own perspectives. You will often hear them referring to a certain "reading" of a text. You will often hear them disagree with each others' reading of a text. Habermas is most keenly aware of the development of his thought and the reactions he has had to the thought of others' as his thinking developed. He walks us through that development in this text. He may misinterpret another, just as we may misinterpret him. But the process of thinking matters. Habermas goes beyond his discussion of Weber and Parsons to note that he thinks Luhmann is wrong in conceiving law as a separate social system, like administration, economy, etc. He draws support for his view from Durkheim, who saw law as developing as part of the "societal community." (Habermas, pp. 74-75) Once again, "on the shoulders of giants." Seeing this development of thought is one of the advantages of going back to original sources. In a traditional text book each of these various systems of community might be presented: family, school, administration, law, market, and so on. But when presented as one of many institutions, within an organizational framework that hangs together for straightforward reading and testing, the deep puzzling questions to which there are no right answers are often given short shrift. You might never be led to question Rawls' assumption of a well-ordered society starting from scratch without the messy real life institutions of today. Luhmann's theory might seem reasonable without Habermas' reading of that theory. And we haven't even dealt with Luhmann's reading of Habermas. Textbooks as Authority Text books serve a purpose. They organize and classify whole sections of a field so that students can efficiently access the knowledge base for that area. We need them as a tool. But we have come too much lately to rely on them to the exclusion of original sources, as though only scholars have the skills and opportunity to engage in social and philosophical thought in these fields. And there's another tension, isn't there? Tension between the importance of packaging knowledge conveniently so we can swallow large packets at once, and the need to legitimate that knowledge by our understanding and acceptance of full citizenship in the world of thought that produces that knowledge. Text books also need to be considered in a different light. To a very great extent they represent the authors' reading of the earlier works and research studies that go into the text. When we rely on a text book, we rely on that author's reading. And every reading has a perspective. In the Spring of 1996, Richard A. Wright published an article, "The Missing or Misperceived Effects of Punishment: The Coverage of Deterrence in Criminology Textbooks, 1956 to 1965 and 1984 to 1993," which appeared in The Journal of Criminal Justice Education, Vol. 7, No. 1. Wright compared the body of research on deterrence to the reports on deterrence that appeared in textbooks that were available during two 10 year periods. In the time span between the two sets of text books Wright reviews, deterrence research had changed. Wright summarizes the research from hundreds of deterrence studies in the last 25 years to show that longer sentences have little deterrent effect but that certainty of punishment has a lasting effect. The studies also show that "perceived certainty in punishment is more significant than actual certainty in deterring crime." And they show a difference in what Wright identifies as general deterrence and specific deterrence. Wright's study shows that (1) criminology texts largely fail to cover the issue of deterrence in proportion to the amount of research in the area, and (2) there are misrepresentations in the coverage that does exist. What does this mean to you, the student? That text books are texts like every other text. They must be read critically. They must be evaluated before you include their contents in your apperceptive mass as "truth." For a grade in a class, the text may represent authority. But for inclusion in your personal knowledge base, having the text available through your university class does not guarantee "truth." Some knowledge of original sources, some understanding of the unstated assumptions in the perspective of the authority is necessary. No, you cannot go to original sources in all issues. But you can remain open to other sources as you encounter them. You should not close your mind with your text book, in the certainty that you now know. Wright goes even further. Here is the last paragraph from his article. He places his hope in students: I wish I could end this paper on a note of optimism regarding the prospects for solving the problem of the two criminologies. [The one represented by the research findings; the other by the text books.] Instead my reading of criminology textbooks and of the leading journals and research monographs over the last twenty years has convinced me that the two are gradually growing farther apart. One can only hope that some student currently taking an introductory criminology course will someday write a great textbook in the tradition of Sutherland's Principles of Criminology (1947). Sadly, the textbook this student is now reading will probably offer no help in that effort. p. 17 Situating Habermas Every text has a perspective, it's authors. It is best, as you assimilate material, if you equip yourself with information about the author that will help you understand his/her perspective. We have already told our perceptions of Habermas and why we chose his text for this course. It would still behoove you to see what others have to say about him. The very fact that we chose him says that we are comfortable with his perspective. So you can't look to us for a sense of how some liberals and conservatives would view him. But we can lead you to some of their writings which might give you their perspectives. Critical Theory We like to speak of critical theory as theory that criticizes. We're common sense people. Critical theorists are usually (though not always in our book) left of center. It's their job to tell us what's wrong with the system, to criticize, and there's usually lots of room for that. Those who are in positions of power could appropriately be imagined to spend less of their time criticizing and more on making the decisions that would further their perspective. Theory that is explanatory of why what those in power are doing is actually legitimate, good for us, just, the best that can be done given our present predicaments, that kind of theory we call apology. Now you can see why we hesitate to say that all critical theorists are on the left. When the critical theorists are in power, the right uses some of the same rhetoric, the same kinds of argument to critique. Hirschman found this when he tried to discover the rhetorical patterns of reactionaries. He found that liberals use the same rhetorical patterns. (Hirschman, The Rhetoric of Reaction) There is, however, a special group of critics that identifies itself as critical theorists. They are most active in law, philosophy, literary critique, and the social sciences. The text we used for this introduction to them was Kelman, Mark, A Guide to Critical Legal Studies, Harvard University Press, 1987. Kelman describes critical legal theorists as left of left. But he also describes them as not willing to buy into apologetic buying into the idea of "a rather complacent world view in which our ends are met as best they can unless we distort the beneficent workings of the private world through collectivist utopian meddling." As Kelman describes them, critical legal theorists wouldn't buy into "collectivist utopian meddling" either. They are pretty down to earth, disenchanted with "big issue" claims, and more likely to see the world as a complex mess from any angle. Now certainly Kelman doesn't represent all critical theorists. But his point seems to us well taken. There is probably a very real division between those who seek to develop alternative ideal world views from those who see the mess up close everyday. We need both. Both likely afford us pessimists and optimists. But this at least should help you formulate some of the questions you should ask of a text. Habermas is a critical theorist. But he is one who wants to deal with the "big issues." He wants to understand and connect with our common sense on the issues of legitimacy, validity, morality, pluralism, democracy, values, and social integration. But his approach will be from the point of view of one who sees what is wrong with what has gone before in such thought. He will be seeking course corrections. Other Theorists Habermas reviews and seriously considers Rawls' Theory of Justice. Rawls goes back to social contract theory for his foundation. Dworkin, whom Habermas also reviews and references, is a liberal thinker, as identified by Habermas. We included a brief selection from Dworkin's Law's Empire. Dworkin is much easier to read than Habermas. He is also much more into dealing with the concrete problems of our everyday mess, like abortion, Anita Hills and Clarence Thomas. Notice that Habermas has more interest in the big issues. Robert F. Nagel, Judicial Power and American Character, Oxford University Press, 1994, deals with Anita Hill and Clarence Thomas, too, but from a more conservative viewpoint. He deals also with the confirmation hearings on Bork, and does so with wit and balance, fully recognizing the perspectives of theorists. Bork is like most law professors not only in his vulnerability to the severe accusation of deceit but also in his willingness to make the charge. He repeatedly asserts that jurists and scholars use constitutional doctrines as fabrications to cover their left-wing political objectives. Ronald Dworkin calls these charges 'shrill and mendacious,' meanwhile suggesting that Bork's jurisprudential agenda is to advance 'right-wing dogma.' For reasons that require considerable explanation, Dworkin does not think he is conceding anything about his own commodious interpretive approach when he describes Bork's as sufficiently loose to permit a political agenda to masquerade as constitutional imperatives. Conversely, exactly the same can be said of Bork and his assertions about the political objectives of people like Dworkin. p. 37 Enough said for you to get the idea. Texts and their authors have perspective. You must take that perspective into account (1) for your grade in classes and (2) for inclusion or exclusion in your working knowledge base. If you are interested in other thinkers dealing with the same big issues, follow some of the additional references we have cited, all along the political spectrum. Remember, though, the exercise in thinking is at least as important as the conclusions. 48. How does Habermas describe the period of early modernity in social thought and how did positive law respond? (Habermas, p. 75) As the gradual breaking off of sub-systems, economic and political, and cultural with the effects of pluralism. Habermas says that positive law responded in three ways: 1. By the institutionalization of markets and bureaucratic organizations. 2. By administrative structuring of legal procedure, with courts to bring cases. 3. By universalizing democratic citizenship. Mass media played major effect. This led to the importance of equal educational opportunity. We needed to avoid democracy based on sound bites. (Habermas cites Parsons on this point, p. 76) 49. What has driven the increased emphasis on civil and citizenship rights? (Habermas, p. 77) Social evolution Class struggles Social movements Migration Wars 50. What does Habermas mean by doctrinal knowledge? (Habermas, p. 80) "[K]nowledge that has been articulated and systematized, brought to a scholarly level, and interwoven with a principled morality." 51. What is Habermas' definition of lifeworld? (Habermas, p. 80) "The lifeworld is constituted from a network of communicative actions that branch out through social space and historical time, and these live off sources of cultural traditions and legitimate orders no less than they depend on the identities of socialized individuals." Elements of lifeworld: Background knowledge Across space and time Dependent on cultural sources And socialization practices And how individual accepts socialization = personality Mediated by the communicative actions of individuals Who are acting in good faith And committed to the legitimacy of such action And their self-regulating power to bind themselves to the community Habermas might parse this definition differently. Each of you might. But to parse it would be a good idea. This is one way to give structure and meaning to what you are reading. These first two chapters have laid the foundation for Habermas' sociology of law. We have reviewed them in great detail because the concepts are ones on which Habermas will continue to build throughout the text. Chapter 3: A System of Rights Now Habermas begins to address the "puzzling connection between private liberties and civic autonomy." (Habermas, p. 84) He does this by trying to show that democracy should not be subordinated to the moral principle. 52. Describe the German movement towards "subjective" private rights and its relationship to "objective law." (Habermas, p. 85, p. 89) In Habermas' system subjective generally refers to that in which the individual has free will, self-determination, self-regulation. This includes the concern with legitimation. Objective generally refers to that which corresponds to facticity, to that which can be established like social fact. In the nineteenth century there was a movement in which private rights became identified as "subjective" to the extent that they were defined as a legitimate right of each individual, and considered independent and given over to "the free exercise of individual will." Because these rights were founded subjectively, that is, in values, norms, and through the social contextual concept of legitimacy, they eventually lost ground to "objective" law, when modernity and pluralism led to the questioning of previously inviolate questions of legitimacy and ethics. 53. Why was Kant more successful than Hobbes in justifying private rights? (Habermas, p.90) According to Habermas, Kant was more successful than Hobbes because Kant based his justification on morality, whereas Hobbes had tried unsuccessfully to justify rights on "self-interest alone." Hobbes' justification failed because in a natural state, we cannot assume systems knowledge that would enable people in that state to understand the collective interest and the value of institutions. The need to justify private rights explains why Habermas goes to such lengths to find a substitute that can serve as a mechanism for social integration, as morality did for Kant. Another approach to the dilemma might be to redefine morality as Rawls redefined justice. Rawls speaks of "a concept of justice" as the underlying core to particularized "concepts of justice." CONCLUSION We need to remind you at this point that the reason for going through such cognitive antics to define legitimacy, morality, justice, law is that these concepts underlie all of our assumptions in the system of law. Whether we state them or not, we act upon them. To the extent that they are fuzzy, unclear, do not hold up to rational analysis, we are hobbled in the real world with the loss of legitimacy that brings. And that loss of legitimacy affects each individual's willingness to obey the law and to hold others to that standard. Today, as we are faced both internally and externally, with pluralism and its effects on social integration and on legitimacy, we need these answers, or at least the well-considered thought that has gone into answering these questions as fully and honestly as we can. We need the understanding because we have real problems on which we must act, real problems that could tear us apart as a society, as a world, if we fail to deal with them fairly and honestly enough to achieve social integration. For us, these are not isolated philosophical musings. They are essential components to a critical reasoning foundation for each of our citizens. The need for such a foundation was recognized by Durkheim in his call for equal educational opportunity. These questions will lead you to tools and resources with which citizens can make the decisions of tomorrow. Now, in the spirit of treating our students as self-determining citizens in the academy, we invite you to participate in the development of the rest of this handbook. We will supply clarifying questions and answers, but we want you to share in the direction such questions take, as our class develops.