Sonya Flower and Travis S. Fraser wrote:

• In what ways is consensus theory like positivism?

  ANSWER:

  All crime can be considered bad by the majority (consensus), yet individual crimes can be looked at in a positivistic sense. Example is person steals food to feed family, it is semi-acceptable because the family needs to eat.

  Sonya Flower
  Travis Fraser
  Law and Social Change, CRMJ 490
  

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  On Mon, 11 Oct 1999, Susan Takata wrote:

  Clarify what you mean by "positivism."

  Susan

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  On Mon, 11 Oct 1999, Travis S Fraser wrote:

  Okay, I read the defenition in the back of Arrigo and it says that everything can be identified or controlled with scientific exactness or precision.  So, Consensus (everyone agreeing) and positivisim (on one answer).  That is vary hard to do...look at what happpend in Criminology class on the abortion issue.

  Travis Fraser

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  On Oct 11 1999, Susan Takata wrote:

  Let me clarify. We went over this more in the crim class than law class. What Jeanne meant by consensus theory are Durkheim & Merton (structural functionalists who are politically conservative). Durkheim established sociology as an accepted academic discipiline by borrowing from the biologic sciences (check out lecture summaries in the theory class off of DH). By borrowing from biology they were considered positivists.

  This question we really haven't gone over in the law class. It's a challenge for you two to attempt to tackle. Not all questions/exercises that are up are the material that Jeanne and I both are covering necessarily.

  We kind of hit on this when we talked about Marxist criminology.

  Susan

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  On Oct 12 1999, Susan wrote to Jeanne:

  Travis and Sonya are trying to answer this exercise and I haven't gone over this material. It's nice that they're trying.

  Susan

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  On Oct 12 1999, Jeanne Curran wrote:

  For me, positivism is a philosophical position, akin to scientism, that believes that there is a reality out there that we can now, for which there are universal laws, if we can discover them, and that enlightenment is the discovery of such universality. Positivism believes that ultimately everything can be treated in a scientific, unbiased, neutral way. Postmodernism, critical theory, etc. are opposed to such universalism, and fearful that in the search for enlightenment we are destroying the local, the different, the creative, the human.

  And then she added by e-mail:

  Susan, Travis, and Flower:

  When I was comparing consensus to positivism, I had in mind the intense criticism that critical theorists of all kinds have made of positivism's certainty that "truth" can be revealed, that there is some universal truth that we will discover as enlightenment. Consensus theory, the approach to justice theory that believes that our laws and justice are concepts we "agree" upon and that fit our society as best as can be managed in a real world, also makes that implicit assumption that there is a "right" way, that we are as close to that "right" way as we can get in our consensus.

  Critical theory is more like conflict theory in that critical theorists focus on the feedback of system responses that are not working effectively. We're focused on the cracks that let people fall through. The consensus group is focused on moving all of us as a group safely into the next century. Both of these are important areas on which we need to focus, but they produce different policies and practices. The critical theorist does not believe that there is A RIGHT WAY we have agreed upon. She doesn't believe there is such a way. And she doesn't believe we have consensus as much as coercion. She is focused on hearing the feedback for which the consensus theorists don't have time.

  Where is Habermas? He believes there is a RIGHT WAY only in discourse in the system of law in public discussions of justice and of resource distribution that will hear the claims of all in good faith. With respect to broader discussions of who we are, where we are going, and why, Habermas recognizes the need to situate discourse within the context of the lifeworld. Only in law does he perceive that we may find consensus and some remnant of enlightenment.

  Let me try to give you an example: downsizing in the US today. By downsizing and moving factory work to other countries, we have increased our wealth and that of those workers who have invested in stock. This moves all of us forward in the world economy, a consensus goal. But at the same time workers who were not able to invest in stock are left without jobs and damaged economically by downsizing. Critical theorists focus on this aspect, and remind us that the system isn't working for these workers. Their focus is more local, more narrative, less bottom-line, less willing to see downsizing as consensual.

  Does that help? The example that Sonya and Travis used of a person stealing because of necessity to eat, fits more onto the conflict than the consensus side. For one thing, that example acknowledges the importance of situatedness. Consensus tends to operate without such acknowledgment. jeanne

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  On Oct 27, 1999, Sonya Flower wrote to Travis and Susan and Jeanne:

  Re: Law Exercise 5 on Consensus and Conflict

  Okay, I am going to try to do this one. But I warn you, it will be more than 25 words, and it might be wrong, too.

  jeanne's comment: Hey, That's how we all learn together. Good for you for taking the leap.

  Sonya continues:

  There is consensus (everyone agrees) in Wisconsin that Lambeau field (Green Bay Packers)  should not be replaced by a new "updated" stadium. This was established by people not buying stock that would fund the new stadium (it was only $20 a share, so not too expensive).

  jeanne's comment: This makes good sense. You have expressed that there is consensus over Lambeau field. And you have explained the measure you are using to determine that. That's solid argument.

  What I would also like to call to your attention is that consensus theory tends to be apologetic, meaning that it tends to defend the present system and/or offer solid explanations why the present system is doing the "best we can." What that seems to indicate to me in practice, is a belief in the purchase or failure to purchase stock in the stadium is an accurate measurement of a reality "out there" about how people feel about the stadium.

  Statisticians would caution you that we do not really have an adequate measure of the relationship between the vote and peoples' feelings about the stadium. Maybe those who would very much like to have the stadium do not have the discretionary income to buy stock right now. Minow would tell us that we should carefully state our assumptions about the meaning of the vote, for we must make assumptions, and we sometimes forget that we have done so.

  Critical theorists would caution you that the apologetic approach tends to see solutions or measurements that tend to fit comfortably within the present system. Buying stock to build a stadium would fit within a traditional U.S. approach. Critical theorists would suggest that their may be other perspectives that would offer different solutions and measurements, and that perhaps we need to address those.

  Sonya continues:

  Now positivism (universal law)

  jeanne interrupts:

  Whoa, I don't think that's a good definition of positivism here. Positivism is not universal law, but the belief that we can in fact find a universal law that will serve all of us.

  Sonya continues:

  Now [according to?] positivism (universal law) I would have to say there is such a historical significance in Lambeau field that people will preserve it, and maybe fix it up but never tear it town. Maybe even leave the field there, and build a new one down the road if needed, but never get rid of Lambeau.

  jeanne comments:

  Again, this is solid reasoning. I think what you are suggesting with the reference to positivism is that in fact there is a public opinion about Lambeau field out there, and that somehow we can measure it, and that that measurement will give us a "true" sense of how people feel about Lambeau field. That is a "positivst" belief in our ability to "determine reality." But it also represents your argument that the purchase of stocks is not the only measure that must be used to gauge that reality. You bring up here the history and tradition of Lambeau field.

  Now you can do one of two things that I see immdediately. You can handle this as a social science problem, and conclude that the local government must not make final decisions without taking into account the historical and traditional aspects of Lambeau field.

  Or you con conclude with a rousing opinion, as you tentatively did, that the pople will "never get rid of Lambeau." In this latter case, your essay becomes rhetorical.

  Sonya continues:

  Well?? Is this even close?

  Sonya Flower

  jeanne comments:

  Very close, Sonya and Travis. Have more faith in your ability to argue effectively. All that you did here was make a few intellectual leaps. That is, you thought the problem through correctly and well, but you have less experience at this than Susan and I have. So when you wrote, you neglected to mention a few of your underlying assumptions. All I've done is point them out as what I call "intellectual leaps." In professional discussions, when you can be sure that all in the discussion are aware of the essential assumptions, we do simply assume them. But at this point, when your readers may include professionals and non-professionals, it's a good idea to avoid such intellectual leaps. I promise you some CSUDH and some UWP students reading your piece might not be able to follow your argument unless you state them.

  Good work! jeanne

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