Link to What's New This Week Sociology of Law Handbook: Chapter 1 Continuing with the Fifth Unstated Assumption.

Dear Habermas Logo and Link to Site Index A Justice Site

Online Text of Sociology of Law Handbook

Mirror Sites:
CSUDH - Habermas - UWP - Archives

California State University, Dominguez Hills
University of Wisconsin, Parkside
Soka University Japan - Transcend Art and Peace
Created: July 24, 1999
Latest update: August 23, 2003

E-Mail Icon

Index of Topics on Site Chapter 1: Continuing with the Fifth Unstated Assumption.

Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, August 2003.
"Fair use" encouraged.

The Fifth Unstated Assumption: "The Status Quo Is Natural, Uncoerced, and Good"

When this assumption is made there is a failure to recognize that a representative democracy functions by majority rule. And majority rules usually reflect what works for most people. After a while, since the people it doesn't work for aren't around, or have no forum through which to protest, we tend to forget that dissent exists. That is when we begin to assume that the state we have come to is natural and good. The way it should be.

The social conservative woman assumes that the subjugation of women is natural, in keeping with God's plan, and good for us all. But what happens when a woman who subscribes to that theological doctrine marries, accepts the status of her husband, bears children, and is abandoned by her husband to raise those children alone, without financial support? At that point the "plan" isn't working. And if that subjugation means that the woman earns two-thirds the amount of men doing comparable work because, theoretically, they are the "heads of the household," there are some problems with unstated underlying assumptions. One of those assumptions is that all men, as well as all women will meet their familial responsibilities as directed by the "plan" that dictates subjugation as natural and uncoerced. Since religion is not able to control male and/or female behavior in the broader society, some males and females will not live up to the expectations of their religious group, and our experience is that they cannot easily be coerced to do so. At that point the assumptions do not work for that group and their families. New perspectives need to be addressed. Some socially conservative women expect the government to write laws that will require men to fulfill their obligations. They consequently oppose the freedom of no fault divorce, even though that freedom was originally intended to help women for whom the "plan" wasn't working. (Klatch, Rebecca E., Women of the New Right. Temple University Press, Philadelphia, 1987. ISBN 0-87722-470-6.)

If school rules or administrative policy offer a class required for graduation only in the daytime when some students who need to take that class work days, the rule does not treat all students equally and fairly. Some students are coerced into taking time off from a job, or into not graduating, or into changing majors. Rules can be coercive, even though they appear, on the face of it, to be neutral. And if only 51% of the people can make the rule, the other 49% may find it coercive, unjust, but it remains the rule. In that sense, the rule itself is coercive. There may indeed be no perpetrator who meant harm to anyone, yet the rules, simply because they do not take some normative expectations into account, may have a discriminatory effect.

This theoretical position on unstated assumptions can be found in Minow, Martha, Making All the Difference: Inclusion and Exclusion in American Law. Cornell University Press, 1990. ISBN 0-8014-9977-1. Pp. 49-53. Martha Minow is Professor of Law at Harvard University.

The Privileging of Subjectivity

When assumptions remain unstated, those in power are privileging their subjectivity. "Privileging their subjectivity" means that they are assuming that their perspective is the "right" perspective for everyone, that other perspectives do not matter. Sometimes this happens when people are very successful. Since most of us would like to be "successful" we mistakenly conclude that those who have achieved "success" were "right," and that they can make the best decisions for all of us. If they define some of us as "different," we may be treated with little opportunity to dissent, particularly when those in power have had long and successful careers and are considered to be objective, and just, and acting for the good of all. A very good example of this is the courts' treating of Black Women as an intersection that fits neither the protected class of gender nor the protected class of race. Black women may not sue for discrimination as women; they may not sue as Blacks. Yet when white men sue for reverse discrimination, the courts treat them as a single class, despite the fact that they, too, stand at the intersection of gender and race.

(Kimberle Crenshaw, "A Black Feminist Critique of Antidiscrimination Law and Politics," in Kairys, The Politics of Law, Pantheon Press, 1990.)

Stating our assumptions brings them to consciousness and permits us the critical distance requisite to an understanding of "situatedness."

Martha Minow is a lawyer and a professor of law. Kairys and Crenshaw are lawyers. Do sociologists report these same phenomena? Yes. Pierre Bourdieu is a prominent sociologist, who has taught sociology at the Sorbonne and was elected Chair of Sociology at the College de France. Bourdieu reports throughout his work that the dominant class realizes its privilege, not by self-seeking or conspiratorial means to hold its advantage, but simply by taking advantage of the rules and institutional practices that have arisen during its stage of power. Lechte, in Fifty Key Contemporary Thinkers, rephrases Bourdieu's thesis thus:

[O]ur common-sense ideas, or our imprecise unscientific language are founded on a misrecognition of unequal power relations and a concomitant reproduction of privilege. Lechte, p. 46

Bourdieu gained his experience in Algiers, observing the reproduction of privilege of the French over the Algerians. The groups are interchangeable. The assumption and privileging of subjectivity are the underlying pattern that is reproduced. Joseph Feagin, Discrimination American Style, calls this "institutional discrimination," discrimination without a perpetrator, evolving from the rules and practices of the institution.

Increasingly, businesses are providing part-time help to answer a phone line only on specific days at specific times. The message on one such line for a publisher informs professors who need permission to reprint a portion of an academic piece that they must leave a message, send a fax, and wait "for at least a month," because the requests are so numerous. There was once a time when so many requests would have justified another person to answer the phone. As such practices become routine, new and different groups of people find that the rules lock them out, to varying degrees, with varying opportunities to circumvent the situation.

Study Questions

  1. Is the group of people who have incurred a "first strike" a social group that has been labelled "different" and for whom the law privileges someone else's subjectivity?

    Yes. They are "different" in that they have been accused and prosecuted successfully for a felony.

    The subjectivity that is privileged is that of the rest of society who has not been so accused and successfully prosecuted. One of the dilemmas is that having reached this definition of difference, we now often leave the "different" out of all citizenship processes that might re-engender the social integration that thrives on legitimacy. To the extent that the individual feels justifiably or no that what occurred to him was unjust, unfair, that individual no longer partakes freely and with commitment in the social community. We do not here attempt to propose a means of reintegrating such social groups as those having a "first strike." We do, however, suggest that it is a social problem of major concern to all of us. One of the privileges involved for the rest of us without a "first strike" is that of not having the label. There is extensive research (Becker, labelling theory) on the harm done by attaching a label to such "difference." Minow's emphasis on unstated assumptions takes into account the fact that certain privileges, like those of people who do not have a first strike, may translate into a very different experience of some situations, for example, fear with respect to law enforcement.

  2. How does the difference between an advocate and a trier of fact in our legal system relate to perspective in our system?

    An advocate, such as a lawyer (1), is one charged with the task of considering the perspective of the person he/she represents. (2) A trier of fact, such as a judge (3), is one charged with maintaining a neutral perspective. (4) This has all sorts of implications for perspective. First, we presume that a trier of fact is neutral, something that it's pretty hard for a human to be. The trier of fact is likely to reflect the unstated assumptions of the social group to which he/she belongs. This is exactly what Kimberle Crenshaw challenged for Black Women, that white male jurists were relatively bound by a white male perspective, less able to comprehend the black female perspective. (See p. 12 of this handbook, under the fifth unstated assumption.)

    Second, the system dictates a difference in perspective. Advocates are charged with assuming the perspective of the side they represent. Our system of ethics prohibits their arguing the opposite side. This reflects our philosophy that truth will best emerge when the trier of fact remains neutral, and the advocate for each opposing side states the strongest possible case for that side.

  3. How does the concept of advocacy in our legal system encourage us to understand multiple perspectives?

    Advocacy requires us to bring to awareness the unstated assumptions (1) and to consider other perspectives (2), thus increasing the "legitimacy" (3) or "fairness" (4) of our legal system. (5) Advocacy forces us to take multiple perspectives formally into account as we argue legal cases. This has long been built into our legal system and is not the result of recent developments in modern pluralistic society. Once again, we remind you that social thought has a long and respectable history.

  4. How does the concept of scholoarly humility apply to the recognition of perceptual differences in the assumptions that underlie most of our institutional and corporate practices, as well as our individual perceptions of truth?

    Scholarly humility is that tradition inculcated in academics that knowledge is built upon the preceding knowledge base. Merton speaks of climbing on the shoulders of giants. All knowledge assumes a knowledge base on which to build, for without such a base there could be no shared understanding of creative insights. Scholarly humility is one of the factors that leads philosophers, particularly linguistic philosophers, to want to add "probably" to most truth assertions. This tradition is even more somber in the law. The Supreme Court of the United States, the final arbiter in issues of law, cites the precedent of earlier cases, building its opinion on what has gone before, sometimes correcting course, but rarely tearing down old edifices of knowledge. Advocacy is at the base of our sense of justice, which is based on a system that recognizes that truth, as determined in a human court of justice, is best served by the unswerving development of opposing perspectives, with a trier of fact charged with neutrality. Most of the thinkers we encounter in this class suggest a course correction that takes into account that there may well be more than two opposing perspectives, there may be multiple perspectives. Even "truth," as we understand it in the legal record, depends on perspective, that of the trier of facts, who is better positioned than an appellate court to look a witness in the eye, to question that witness, and to make judgments of truth telling. We recognize facts in the law to be what has been held to be true by the trier of facts. That means that if X lied in the courtroom, but the jury or the judge found in favor of X, Y may not challenge X's truthfulness at the appellate level. The facts as reflected by the finding in the record are now viewed as facts which support that finding. Y may challenge at the appellate level only the application of law the what was found by the trier of facts. That is sometimes called "legal truth." The facts as found by the trier of fact in the record now become the facts, period. Appellate courts will not substitute their opinion for the opinion of the trier of facts unless no reasonable person could possibly have come to the conclusion of the trier of facts. That's one tough standard to beat. That is the extent to which our system of justice respects perspective, in the interest of making judgments, once reached, final. Minow reflects the importance of many perspectives throughout her work on difference. She states that the dualism of categorical thinking is inappropriate to modern rights law. Wisdom reminds us that the claims of difference and similarity (essentially dualistic in nature) lead to misunderstandings. Giddens even reminds us that once humans come to understand the system, as sociologists clarify that system, they proceed to alter it in accord with their new understanding, affording the sociologists a new system to study and explicate. If Giddens is right, this process is never ending.

Review of Introductory Habermas

Study Questions

  1. What does Habermas mean by the dual nature of law? Good answer on p. xix, Habermas, end of first paragraph.

    Individual rights on the one hand and on the other, freely choosing limitation of those rights by citizen participants for the social integration that will promote a continuance of individual rights.

  2. How did Marx's concept of class conflict affect our earlier view of society as a collection of individuals with equal rights? (Habermas, p.xxi, top of page.)

    Marx took a structural view of society as coordinated by markets ("behind the participants' backs) instead of in response to equal participation.

  3. What happens to the concept of learning in Luhmann's systems theory? (Habermas, pp. xxii-xxiii)

    The law establishes and enforces acceptable normative behavior. In a society in which the participants' norms arise from their activities and beliefs, non-conforming behavior might result in "learning," in the sense that if many Xs do not do Y when confronted with the appropriate situation, the society might reconsider Y as a normative response. But in systems theory, the system does not consider the participants' response, does not learn to alter its normative expectations, it just punishes or sanctions the non-conforming response. Thus, individuals must conform to a system that no longer takes their behavior into account. Luhmann calls this "autopoietic" behavior.

  4. Consider how Luhmann's systems theory might translate into our modern concern with violence.

    To the extent that we react with responses like California's three strike law, with longer sentences, more enforcement, we are punishing non-conformity to our non-violence norms. We are moving towards an "autopoietic" system of law. To the extent we "learn" from increasing non-conformity to reconvene as a society and reconsider the normative expectations on violence and that which produces it, we are moving towards a new kind of social integration that is responsive to the community.

    We choose not to even comment at this point on how we might reconvene and how we might reconsider. Those are "Big Issues." Habermas calls such activity keeping the law "cognitively open" to its environment.