Professional Documents
Culture Documents
by
Jeanne Curran, California State University, Dominguez
Hills
and
Susan R. Takata, University of Wisconsin, Parkside
Copyright, 1996 by Curran and Takata. The authors wish to thank the Law and Society
Research Team of the Department of Sociology at California State University,
Dominguez Hills, for their continuing review, application in actual classrooms, and
suggestions for the model used for these materials. Our thanks to Patricia Acone, B.A.,
Stanley Cameron, A.A., Richard Moncure, B.A., and Catherine Moore, B.A..
Part 1
This handbook is designed to accompany Habermas' Between Facts
and Norms. We chose to use Habermas' most recently translated work
on the sociology of law because he is one of the greatest thinkers in this
area, and because he addresses the very real social issues facing modern
democracies in the twenty-first century. Because he is European, he
reflects the European sociological tradition of heavier orientation
towards philosophy. That is a plus today, as we in the U.S. discover
ourselves facing global markets and global conditions. Habermas'
specialty covers both German and U.S. systems of law, and he is a
sociologist, not a jurist, not a lawyer. His connection to U.S.
scholarship in sociology of law was an important consideration in
choosing his text.
There were other considerations that weighed heavily in our choice of
this text. Habermas is a postmarxist, rejecting the objectivity of Marx,
at a time when we need to understand postmarxism through Russia's
ordeal and that of other marxist enterprises. Habermas is an optimist.
That is something we very much needed. Both of us have taught in
small urban universities with many first-in-family students, for decades
now. As our student populations reflect our changing society, increasing
numbers of our students feel the tensions between the factual reality of
legal and political rules that constrict their educational choices and the
The norms Habermas refers to are our expectations about the validity
and legitimacy of the law. Validity affects our expectations of fairness,
justice, right.
If there are groups or situations for which the law does not produce just
results, then do we lose legitimacy? Do we lose some of our social
integration? And at what point does that become critical to the society?
Study Questions
Points are included in some of these early sample answers to give you a
realistic idea of how we break an answer into points to give you
feedback on the thoroughness of your answer. They DO NOT represent
a maximum or given number of points for that answer. The maximum
number of points depends on the arguments and issues you raise in your
own answers. Please remember that you should acknowledge in your
own answers that you do know the interpretations we have given in
ours. And any answer you give must be linked to the textual and lecture
materials of this class.
1. What is a fact? What is a norm? In Habermas' scheme?
The facts Habermas considers are the social facts of positive, enacted
law. The law is, much as a social fact is.
A norm is an expected pattern (1) of behavior (2) shared with the given
social community. (3) The norm in Habermas' scheme involves the
expectation of legitimacy and fairness we hold for our system of law.
2. What is the tension Habermas describes between facts and norms?
The tension between the positively enacted rule of law and our need to
believe in the legitimacy of that law.
Facts are objective, empirical. (1)
We can agree (2) on them despite differences in perspective. (3) A stop
sign is present on corner X.
Norms represent expectations (4) which vary (5) depending on the
perspective (6) The stop sign means stop. (7) Some of us do a
"California rolling stop."
One form of tension is that between the extent to which we can be
neutral, and to which we must take into account the difference in shared
perspectives. (7)
eliminate some of the violence. If the perpetrator is locked up, she can't
engage in violence. That does not, however, deal with what such
incapacitation means in terms of legitimacy and further costs the social
community may find itself paying (some of which may be in terms of
violence, though a different violence) if legitimacy is not agreed upon
by the social community .
Incapacitation in a pluralistic society raises issues of legitimacy which
affect the ability of the system of law to provide social integration
across the market and the administrative power sub-systems.
(Habermas, p.73)
6. Explain the tension in the decision to incapacitate.
The tension in the decision to incapacitate is a second-tier tension.
Because of the foreseeable application of laws that are aimed at
incapacitation, especially through longer sentences, tensions are going
to develop within society about the coercion, about the fairness to
different groups, and about the interpretations and situatedness of those
groups. This is still a tension between facticity and our commitment in
and belief to the legitimacy of the coercive force of law. But it has been
shifted to concerns more abstract than the specifically enacted positive
laws. Incapacitation is an underlying assumption and justification for
certain sentencing patterns. The tension now revolves around those
often unstated assumptions.
Tension recurs in determining who should exercise the discretion of
when and on which type of data to call a strike. And in who should
exercise that discretion. All of these questions involve normative
expectations that cut across different groups in the pluralism that
constitutes current U.S. society: minorities who constitute larger than
proportionate numbers in the prison population, immigrant groups who
are concerned for cultural differences that may lead to unfairness,
judges who constitute larger than proportionate numbers of the
empowered (and, for many years, privileged) white males, prosecutors
who constitute larger than proportionate numbers of middle class
government employees. All of these groups must worry about issues of
capture because of the pluralistic concerns of modern society.
(Habermas, p.40) (Capture is a disproportionate and self-serving