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Created: July 24, 1999
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Introduction to Habermas

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 legitimacy of those restrictions. We are a population where these issues are current and real.

Many sociologists and educators have deplored the dilemma of "watered-down" education in which students experience the tension between the "paternalistic provision of some educational rights" and the recognition of the need for self-reflective determination and opportunity. (Habermas, p. 79) In the selection of Habermas' text, we chose to take you to a major source, to challenge you with leading edge writing that occasionally obfuscates as it reflects on its own meaning, and to supplement that text with a highly structured handbook that limits your liability for knowledge that you will be graded on to that which we have interpreted for you. We have tried in this endeavor to meet the very spirit of Habermas' own challenge. We want you to engage in meaningful, self-reflective, self-controlling discourse with us through our shared understanding of Habermas' ideas and framework for the sociology of law. At the same time we want to make your grade free of the problems of interpretation and ambiguity that an original text invites. Our solution was to offer you our interpretation of whatever we hold you responsible for, and to specify that through a universe of study questions and sample answers. Hopefully, that will free us to focus without anxiety on the real sociological issues before us.

The questions and answers that we offer on Habermas' work reflect what we think Habermas is saying and what we think he means by what he is saying. Habermas might well disagree with us. For purposes of this course in Sociology of Law and your grade, our notes make clear our interpretation, which you should acknowledge in essay answers and papers. That should not inhibit you from exploring other interpretations. As Giddens put it, "There is no doubt that [Habermas' work on communicative action] . . . represents a formidable achievement, and all of us working in social theory will be using it as a resource years after most of the current literature in the social sciences has been forgotten." (Giddens, Social Theory and Modern Sociology, Stanford University Press, Stanford, Calif., 1987. at p. 252.)

You should also understand that sociologists have a long tradition of dealing with problems from the philosophical perspective, of contemplating what makes society work. As Habermas adds new thought to this tradition he does not break suddenly with all the long history of sociological thinking, but changes the course of our thinking, corrects that course a little, if he's right. Robert K. Merton said this well when we spoke of how we climb "on the shoulders of giants." Sometimes our scholars tell us everybody was wrong for the last fifty years, but if we read them closely, we find a history of understanding, with an occasional discovery, like Einstein's relativity. We had to have understood a great deal about the universe already to understand Einstein. Rorty says that he is "often accused of being an 'end of philosophy' thinker," when all he really means is that we have taken a wrong turn in twenty-five years of seeking a representational link between language and reality. "Philosophy," says Rorty, "is not the sort of thing that can have an end ..." Neither is sociology. Neither is law. And neither is society. (Rorty, The Linguistic Turn, The University of Chicago Press, 1992.)

Throughout this handbook we refer to other scholars, other thinkers. Sometimes we phrase these references "X expressed it this way," "Y said it in other words." We realize that Habermas might occasionally disagree. At a very sophisticated theoretical level, X and Y may not have yet had in mind what Habermas is calling communicative action and discourse theory. But we figure it qualifies as part of the foundation for "on the shoulders of giants." If you really want to trace Habermas' thought historically and situate each thinker we mention with respect to his thought, that is a major sociological and philosophical treatise, and would require much more than a handbook to help you through Habermas' Between Facts and Norms. Please accept the connections we make in the spirit we made them, to guide your thinking so you can understand Habermas.

Habermas' Statement of the Problem
as Understood by Curran and Takata: (pp. ix-x)

There is tension between our expectations of fairness and legitimacy and the social facts embodied by the rules and law through which we govern our community. The empirical facts of cost and need in a democratic state rarely find naturally just distributions, as the ability to garner resources to meet needs differs over social groupings. Habermas' discourse theory suggests that the law provides a mechanism of social integration that can bring us through rational argument to resolve differences and make fair choices. His is a complex sociology of law that establishes a communication bridge of legitimacy for the social community that can influence the sub-systems of administrative and economic power.

Curran and Takata's Statement of the Problem:

We particularly like Habermas' characterization of the problem as one of tension, tension that can be resolved through the bridge of communication provided by the law. Our attempt to discover a citizen-like role for students within the administrative and economic power of the educational system has led us to feel and document that tension. Habermas offers us a theoretical foundation upon which to interpret the results of our experience and on which to build further attempts. We choose to examine both the tension and the social integration provided by law in this microcosm of our experimental work. Our efforts to translate to this practical level may lead us on occasion to oversimplify or to adapt to our own experience what Habermas brings to a more sophisticated societal analysis. We remind our students that the original text is there to balance our enthusiasms and that our interpretations carry this additional burden of immediate application.

In this section we offer a very simplified example of what Habermas defines as the tension in modern law between facts and norms. (Habermas, pp. xi-xii)

  • Habermas refers to a duality in modern law. That is the duality of tension between facts and norms.

    1. The facts: The facts Habermas refers to are the positive (enacted) law that is reliably enforced. He also calls this "facticity," the social facts defining the "free choice" within which the individual may determine his actions. Law as specifically enacted and enforced is empirical. What the law says can be related to empirical facts.

    2. The norms: The norms Habermas refers to are our expectations about the validity and legitimacy of the law. Validity affects our expectations of fairness, justice, right.

      Habermas speaks of legitimacy, following Kant, who based such legitimacy on morality. Habermas criticizes Kant's dependence on morality because of the pluralism of the modern democratic society. Habermas claims there is no more overriding morality, values, sacred belief to provide social integration, because there are other moralities, values, sacred beliefs in the challenge of pluralism.

    3. The tension: Between the facticity of positive and enforced laws and the validity or legitimacy of that system of law, there is always tension. The law on which Habermas depends to create social integration in modern society must be law that we obey because we believe it right and just for all to obey. The tension is between the claims of legitimacy and the facts of the enacted and enforced law.

      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?

      Habermas' mechanism for resolving the tension, and thus providing legitimacy and social integration, is the commitment of all individuals in good faith to the discourse of the community as a whole. Habermas believes that rational argument of citizens can replace the morality lost to pluralism. We must note, however, that Habermas uses very specific definitions for these terms. He doesn't mean an ordinary committee debate over coming to terms on norms. He means the transcendent language of a community willing to negotiate validity claims and committed to abiding by the community consensus.

    4. The criticism:

      Once we begin to question the legitimacy of law, assuming that reason will ultimately suffice for us to decide, how do we draw the limits?

      Giddens: "Once we admit the principle of the critical evaluation of beliefs, how can anything be exempt?" (op. cit.. p.245)

    5. One modern application:

      In California's recently enacted three strike law we encounter the legitimacy issues faced by modern democracies. In this proposition, voted into the State Constitution by popular vote, there is a major penalty enhancement for violent felonies when the defendant has a prior felony conviction (a strike). For a third conviction, (that is, for a defendant with two prior strikes) the penalty is 25 years to life.

      This law is enacted and enforced. Facticity. But there is tension with the justice and legitimacy. First, there is much debate over whether prior strikes were violent, over what should and should not count as a prior strike. Who shall have discretion? The district attorney? or the judge?

      • Each must enforce the law.
      • Each is sworn to seek truth and justice.
      • One is the trier of fact. (The judge.)
      • One is an advocate arguing a given side. (The D.A.)
      • The incidence of crime may carry weight.

      In a time of great violence and social concern discretion is likely to be weighted toward the D.A., the prosecutor.

      In a time of relative peace and concern for pluralism, situatedness, discretion is likely to be weighted toward the judge, for a more neutral hearing.

Discussion Questions and Lecture Notes to Explicate Them

The lecture notes offer one plausible approach to answering the question. They will clarify for you what we were thinking of when we asked the question. The lecture notes are by no means the definitive or ONLY answer.

Please 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 of behavior shared with the given social community. 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.

    We can agree on them despite differences in perspective. A stop sign is present on corner X.

    Norms represent expectations which vary depending on the perspective. The stop sign means stop. 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.

    Though we may describe the rules objectively, the legitimacy with which we regard the rules and the legal system depends to a very real extent on our shared expectations that the rules are fair and just. Since reasonably objective rules are abstracted beyond actual situations, there are situations in which the application of those rules produces tension. One example might be the California rolling stop. What constitutes a stop? Must the wheels actually stop turning? For how long? 1 second? 15 seconds? 30 seconds? How will the amount of time that defines "stop" be measured? Will the officer need a stop watch? Or would some other definition of stop work better? How shall we determine that all officers will require the same measures for a "stop?" The tension derives from the increasingly accepted standard that objectivity isn't all that objective, since the observer always has a perspective. The age of positivism, when any given viewpoint was accepted as the "right" or "objective" or "neutral" perspective is pretty much over today, though there are still adherents who insist their view is "objective." (Rorty, The Linguistic Turn, p. 371-4)

  3. How does the tension of which Habermas speaks fit into the individual versus the structural control of society? (p. xii)

    One way in which the tension between facts and norms can be expressed is the extent to which the individual is free to make choices within limits that are dictated by the need to preserve that same freedom to make choices to others.

    Individuals must be free according to the ideals expressed by U.S. society. Yet the society as a whole is what preserves the individual's right to freedom and so there are limits on the individual to preserve rights to the whole.

    Habermas believes that for social integration to effectively take place the individual actors must freely choose (Habermas, p. xli and passim) the limits they place collectively on their own individual freedoms. It is through this collective agreement that we derive legitimacy. The tension he describes is between the social facts of the enacted and enforced laws, stop at a stop sign, and the normative expectations we have for what "stop" actually means, and the extent to which we believe the law is justly and fairly applied.

  4. How is the law empirical, factual?

    Once enacted, law is very much like social fact in Habermas' system. (Habermas, p.xi)

    If there is a stop sign at the corner, we can determine that. We can define exactly what we mean by stop: the wheels must stop turning. And it can apply to everyone. The wheels have stopped turning is an empirical fact. We can actually count the number of people who stop, and those who don't. The problem is judging expectations. Must the wheels stop for a second, five seconds, a minute, etc.? Once we begin actual judgments, uncertainty enters.

    We lose inter-observer reliability. One enforcer expects the wheels to stop for a longer period of time than another. Remember the Olympics in 1996, when Lindford Christie was disqualified for anticipating the start in the 100 meter race? Olympic officials maintained that it was impossible (as shown by a research study) for a runner to react in less than 0.10 seconds following the gun for a runner to react. Christie was shown to have reacted in 0.082 seconds and was disqualified. Talk to Christie about the objectivity of those results. This is the problem with objectivity and rules and laws.

  5. What is incapacitation? In Habermas' scheme what issues for social integration does incapacitation pose?

    "Incapacitation now serves as the principal justification for imprisonment in American criminal justice: offenders are imprisoned in the United States to restrain them physically from offending again while they are confined." Zimring, Franklin, and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime, Oxford University Press, New York, 1995, p.4.)

    In Habermas' scheme there will be a special need to look at the legitimacy issues posed by incapacitation. To the extent that more members of one social group than another suffer the long term imprisonment that laws like California's three strike law are imposing, there will be issues of pluralism to be dealt with. The handling of hate and violence in modern democratic societies is an issue unlikely to be resolved before the twenty-first century. Incapacitation is one way to 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 influence in the power and decision-making of any agency, institution, corporation, etc.)

  7. Is the group of people who have incurred a "first strike" a social group that we need to consider equally in democratic discourse?

    Yes. This would be essential for the self-reflexive, self-determining sense of legitimacy to provide the social integration needed in modern society. However, citizenship is the quality Habermas sees as conferring the right to participate in community determination. (Habermas, p. 78) To the extent that a first strike felony resulted in removal of the rights of citizenship, a "first strike" group might not have access to participation.

    The following section offers ways of viewing the differences that have produced pluralism in modern democratic societies. Pluralism is a major consideration in Habermas's theory for sociology of law. We expect the following sections to provide some common ground for discussion of pluralism in this class.