Mirror Sites:
CSUDH Habermas UWP

California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: June 6, 2001
Latest update: January 2, 2002
jeannecurran@habermas.org

Moot Court
Weeks 1- 4 of Winter Break

• Online Readings:

  • Introductory essay. jeanne's explaation of the evolution of moot court and its paradigm shift. Instructions on how we operate. Link added Friday, January 4, 2002.

  • Theory, Policy, Practice Basic concepts we need to understand.

• Hardcopy Readings:

  • Up soon.

• Concepts for Conceptual Linking:

  • Discussion of conceptual linking Detailed explanation of how to do it in these notes from Berthena Kemp's thesis project. Link added Friday, January 4, 2002.

  • Discussion of conceptual linking For Pat Acone's thesis project. Link added Friday, January 4, 2002.

• Some Suggested Measures of Learning:

  Comment on one of the following topics, or do something of your own choosing.

  1. Explain the theory, policy, practice continuum. Why is it important?
     jeanne's comments:

     Theory: Consider general assumptions about values and our worldview, and how that affects what we believe to be "truth." Consider just sittin' and thinkin' about how things work, including us as humans.

     Policy: Consider that no matter how good a solution sounds on paper, actually getting it done reuqires procedures that we can predict and count on. As we try to apply our theoretical ideas to others, we need to consider the real people we're applying it to, and figure out how it will work in the long run for most of the people we serve. Policy is a means of setting up guideline rules. Just remember that Weber's bureaucracy tends to be guarded by clerks who are constrained by those rules. And rules can't cover all the many configurations that occur in the real world. So how rigid shall the rules be? Usually, the lower in the hierarchy the more zealously the rules are enforced.

     Practice: Remember Freire's circles of certainty, and his admonition that when the revolutionary decides that he/she knows what the peasants who are revolting need because he/she knows what is best for them, he is no longer a revolutionary. Same thing with teaching. Same thing with governing. And same thing Habermas says about auto-poietic non-learning subsystems. When the system assumes the power to dictate the needs and considerations, and builds in no means to hear the feedback of those whom it governs or controls, it is a non-learning subsystem and consequently lacks legitimacy.

     Let me give you an example of a non-learning subsystem. The drug wars: the penalties for drug use and the profit from trade in drugs have escalated beyond all reasonable measure in the U.S. The system responds by giving increasingly harsh penalties for drug violations, unless of course you are a powerful drug lord beyond the reaches of our prosecution. More and more of our citizens end up in jail for longer and longer periods of time. But at no time do we look at the whole system as having failed in its goals and consider an entirely new approach to dealing with the problem. Many innocents are caught up in the trauma of the incarceration, but there is no forum in which their validity claims are seriously entertained. Habermas would call that a non-learning subsystem and question the system's legitimacy.

     At the level of practice, real humans enter the equation. It is much easier to ignore their humanity at the theory and policy levels. At the practice level, such denial of the client's or citizen's validity claims breeds insensitivity and arrogance. Cite the Stanford prison experiment.

  2. What is the role of policy and legal theory?
     jeanne's comments:

     Let's consider a sheep case. Sheep were being shipped to the United States from England under contract. On the way across the Atlantic the ship ran into a heavy storm and the sheep were all washed overboard. Who had to bear the loss of the sheep? The shipper who put them on the ship healthy? Or the receiver who got no sheep because they all drowned?

     A smart lawyer in the U.S. argued that there was a law under which sheep were supposed to be shipped in small compartments. This was a health law designed to prevent the sheep passing contagious diseases to one another during the voyage. The ship had no compartments. If there had been compartments, reasoned the lawyer, the sheep would not have been washed out of the hold. The compartments would have stopped them. The lawyer lost. Why? Because the law was designed to keep the sheep free of disease, not to keep them from washing overboard. That is a policy argument.

     A policy argument is one that takes into account why the law was enacted, what the law was meant to accomplish, to whom it was meant to apply. Often courts will refuse to follow a law for policy reasons different from those for which the law was enacted.

     A legal theory is any reasonable construction of laws that will produce the legal conclusion sought. The lawyer's argument that a law had been violated by sending the sheep without compartments, when they might have not been washed overboard if there had been compartments, was a legal theory, even though the court rejected the theory because it ran counter to the policy for which the law was enacted.

     One is permitted to have several different legal theories. They constitute different ways of sorting out the facts of the case and arguing for the conclusion sought.