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Jeanne Curran, California State University, Dominguez
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

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 citizenlike 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)
(1) Habermas refers to a duality in modern law. That is the duality of
tension between facts and norms.
(a) 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
Law as specifically enacted and enforced is empirical. What the law
says can be related to empirical facts.

(b) The norms:

(d) The criticism:

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

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?

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.
(c) 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.

Giddens: "Once we admit the principle of the critical evaluation of

beliefs, how can anything be exempt?" (op. cit.. p.245)
(e) 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?

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?

Each must enforce the law.

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.

One is the trier of fact. (The judge.)

Each is sworn to seek truth and justice.

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

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)

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
(1) within limits (2) that are dictated by the need to preserve that same
freedom to make choices to others (3).
Individuals must be free (1) according to the ideals expressed by U.S.
society. (2) Yet the society as a whole (3) is what preserves the
individual's right to freedom (4) and so there are limits on the
individual to preserve rights to the whole. (5)
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. (1)
And it can apply to everyone. (2) The wheels have stopped turning is an
empirical fact. We can actually count the number of people who stop,
and those who don't. (3) The problem is judging expectations. (4) Must
the wheels stop for a second, five seconds, a minute, etc.? Once we
begin actual judgments, uncertainty enters. (5) 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 (1) justification (2) for
imprisonment in American criminal justice (3): offenders are
imprisoned in the United States to restrain (4) them physically (5) from
offending again (6) 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