BFN - Chapter 2

..42

Through CommA
- R potential of LL - for f(x)s of SocInt - tapped, mobilized, unleashed - in the course of social evolution

Modern Law - fills f(x) gaps in SocO - Int.capacities overtaxed

"The tension between validity and facticity,
already built into informal everyday practice in virtue of the ideal content of the pragmatic presuppositions of communicative action,
becomes more acute in the validity dimension of modern law"

- In ideas of conscious org. of LCom - express awareness of ideal content of LV
- This awareness and the clash between its demands and those f(x)Imp of the MEco and AdST
- provokes empirical critique

Need for legal system to do two things
- uphold claim that even S steered by P and $ can't withdraw completely from consciously achieved SocI
- claim falls victim to sociological disenchantment of law

..43
- radical objection - even semblance of N must be given up if it is to fulfill f(x) in face of SocX


2.1 Sociological Disenchantment of Law

Modern Nat L
- Law seen to mediate b/w all other social relationships

Scottish Moral Philosophy
- doubt cast on rationalism of NatLaw
- established practices customs institutions resisted conceptions of formal law

..44

- empiricist rejection of prescriptivism of ratLaw
- opposed rationalism - neatly resolve the informal fabric of received social relations established institutions deeply anchored interest positions class structures
into deliberately constructed system of rules

SContract
- evidence in modern exchange society
- seemed to secure something like natural autonomy and equality for private persons - thru market transactions
- spontaneous tendency to guarantee freedom
- elaboration of this in formal legal terms, only in LSContract
- in all SContract
- construction of basic institutions along lines of rational natural law - amounted to view that society as a whole could be understood as the intentional complex of free association of originally autonomous and equal members
- plausibility in MSocieties - individuals encounter each other as inherently free and equal
- all inds seemed virtually to occupy position of privately autonomous subjects of law - prior to intentional political association
- even for those who saw SON as constituted by R of Power - society still could be the source of political association  because it requires subjects who conclude contracts and to that extent make law

..45

Doubt on R Nat Law
- Smith and Ricardo - Civ.Soc.  goverened by anonymous ECO laws
- Hegel - civSoc as system of needs - which deprives all inds of real freedom
- Marx - nothing but structures - in which the self-valorization of capital proceeded over the heads of alienated inds. - bring forth greater modes of SocInequality

Transformation of concept of CivSoc
- from "ensemble of authorizing conditions that made freedom possible" - conditions under which individuals consciously join in association, bring socProcess under control
- to "anonymous system independent of the intentions of unconsciously sociated individuals" - follows own logic, subjects Soc to EcoImp of self-stabilization

Unmasking effect
- "relations not of law but of production formed the skeletal framework holding the social organism together"
- replacement of anatomical image with construction metaphor
- law as mere political superstructure, epiphenomenon - upon which rule of one social class over other classes exercised in nonpolitical form
- recursive process of production and reproduction of exchange values - penetrates SocInt effected by modern L


..46

"The realistic model of an anonymous, unintentional sociation taking place behind the actors' backs replaced the idealistic model of an association that legal subjects intentionally bring about and consciously sustain"

Society as Totality
- manifest of unity of legally constituted political order
- replaced by latent unity of systematically produced oder of capital's self-valorization
- negative totality
- Vico and Condorcet - shift teleology of nature into dimension of history - Soc as dev. self-referential totality realizes telos of intentional association only in the course of the historical process
- essence realized in furture association of producers freed of commodity fetish
- SysTheo - strictly objectivating approach - mere illusion of SocInt occuring thru values norms comm law
- without philosophy of history
- Marxist functionalism changed into view of society as "gripped by the repetition compulsions of a self-accelerating and all-pervasive process of accumulation, became a frozen world of reified social relations"
- melancholy - totality now a matrix of sheer compulsion

..47


SysTheo
- given insight of inevitability of DIFF and growth in SocX, becomes affirmative
- observer himself becomes one SS among others
"In this polycentrically fragmented society without base or apex, the many recursively closed, boundary-maintaining subsystems form environments for one another"
- horizontally related SS - stablized one another thru observation - lack possibility of mutual intervention, reflexively adjust to their mutual environments

Luhman
- phil. of subject transposed into radical objectivism
- all intentional integrating achievements disappear
- radicalization of Marxist systems analysis - drop normative ballast associated with holistic concepts of phil of history

..48

SysTheo and Legal Theory
- law regains autonomy lost in Marxist analysis
- given own inner logic, even it becomes one S in disordered manifold of S
- language neither seeks nor gains insight into the knowledge of participants
- sociological observer - one SS among others - gains counterintuitive knowledge of social life, as in natural sciences

Luhman
- neutralizes LegalV - objectivistic description
- law viewed in terms of f(x) served - stabilization of behavioral expectations
- in temporal, social, substantitive dimensions in congruent manner - according to binary of legal or illegal
- LSys
- embraces every comm. oriented by law

..49
- includes those legal acts which change legal situation according to legal procedures, norms, interpretations
- evolution of law understood a process by which positivized law - gains independence - autopoietic system
- recursively closed circuit of comm.
- S describes its own components in legal categories, employs self-thematizations for purposes of const., reproducing legal acts by own means
- norms and legal acts reciprocally reproduce each other
- other implication - lacks direct exchange with other S - cannot have regulatory effect on these
- no macrosocial steering
- alters other SS by altering itself - to which other SS react in same indirect fashion

Normative self-understanding of LegalS obliterated
- normative expectations - become counterfactual cognitive expectations
- immunized from learning

..50
- difference bw is and ought
- reduced to two possible ways of reacting - learning and non-learning
- alternatives only in area of cognitive expectations
- normativity - now is unwillingness to revise them in event of disappointment
- law loses all internal relations to politics and morality
- recued to special function of adm. of law

Legal comm.
- robbed of socially integrative meaning
- conflict resolution - merely as purely systemic capacity - SocInt - becomes unintentional coordination
- appears to lawyers that reasons justify decisons, not decisions reasons

..51
- argumentation - only means by which LS convinces itself of its own decisions
- conflicting opinions are settled by apportioning code values legal / illegal thru exchange of reasons

"Having withdrawn into an autopoietic system, law stands before the defamiliarizing sociological gaze and is stripped of all normative connotations, which in the final analysis refer to the self-organization of a legal community.  Described as an autopoietic system, a narcissistically marginalized law can react only to its own problems, problems that are at most externally occasioned or induced."
- Law's V - only from its F


Assumed mutual indifference bw law and other SS - doesn't reflect empirically observed interdependencies

..52

Teubner
- society viewed as in Luhmann
- each SS has own mutually incompatible construction of reality
- need to explain the reception of alien knowledges in LS - from science, economics, etc
- knowledge translated into legal code - LS unable to assume authority for this k
- legal influence on other SS
- posits medium of general social comm.
- interference is possible bw SS

..53

- all forms of specialized comm. always at the same time forms of general social comm.
- SS use flow of general social comm. - extract special communications as new elements
- to posit a general form of comm. alongside a trapped self-reproducing SS - generality can't be viewed by actors within SS, but must be identifiable only from XPOV
- two claims: legal discourse is trapped in own self-reproduction, constructing only its own image of external world AND general soc.comm. is posited, such that it can influence general constructions of reality - influencing other discursive worlds
- without mutlti-dimensional superdiscourse - information is constituted anew within each discourse
- interference only creates simultaneity

..54

Medium of general comm. seems to be required
- in completely decentered society - no place remains for an encompassing soc. comm. by which society could thematize and affect itself
- in place of lost center of society - Teubner posits LW
- constitutes itself thru an ordinary language, circulating thru all spheres
- has reflexive structure - enables translations from all codes

..55

- appears to be exactly like ordinary language
- such a concept can't fit with autopoietic nature of system

Points to TCA
- distinguishes LW bound to medium of ordinary language from S steered thru special codes but adaptively open to the environment
- SL not taken to be superior to OL
- OL is multifunctional
- practically unlimted capacity for interpretation and range of circulation
- provides soundboard for external costs of differentiated SS - remains sensitive to problems affecting the whole of society
- need not pay price of specialization - deafness
- LW functional differentiation
- culture, society, personality structures - differentiated themsvled within OL but remained intertwined with one another through it
- SS differentiation - thru dev. of special codes

..56

- law as hinge bw S and LW
- f(x) incompatible with idea that LS is self-enclosed
- interference capacity of law - results from law's dual position
- circuit of LW comm interrupted at points where $ and P are encountered - these are deaf to messages in OL
-OL forms "a universal horizon of understanding"
- in principle can translate everything from all languages
- For translation into special codes - remains dependent on law that comm. with $ and P
- law as transformer
- Normatively substantive messages can circulate thru society only in the language of law

2.2 The Return of Modern Natural Law and the Impotence of the Ought


Rawls - return of Nat.Law
 ..57

Unabashed picking of NatLaw - as if one could ignore the disenchantment of law
- Without meatcritical references to POV brought about by PolEco and SocThe
- torn bridges between two universes of discourse


Rawls' interest in the conditions of acceptance of his ToJ
- return of a repressed problem
- at stake: old problem of how  the rational project of a just society, in abstract constrast to obtuse reality, can be realized after confidence in the dialectic of reason and revolution has been exhauseted
- only reformist path of trial and error remains practically available, morally reasonable

In TOJ - WOS
- system that makes possible the just cooperation of free and equal citizens
- basic Insts. set up according to scheme that deserves RMA of all Cn - can be grounded in JaF
- proposes procedure that can be understood as explicating IPOV for judging morally substantive questions of PoJ
- OP - parties involved in justification process are subject to restrictions that guarantee that all arrangements are grounded purposive-rational considerations AND are in interest of all parties - can be accepted as right or just

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1st stage of NJust. of WOS
- attends to problems of self-stabilization
- attempts to demonstrate congruence of the right and the good
- parties in OP are artificial constructs
- not to be equated with Cns that would live under real conditions of society erected under PoJ
- not to be equated with reasonable Cns assumed to act morally, and so subordinate personal interests to obligations of loyal citizen
- SoJ - may ground desire to act justly, but not automatically effective motivation
- Thin Theory of the Good
- show that Just Insts. would create circumstances under which it would be within one's own well-considered interest to pursue own's freely chosen life plans under conditions which enable others to act likewise
- WOS - always good for me to behave justly
- individual's morality would find its ethical context in the Insts of JSoc
- "self-stabilization of a well-ordered society is therefore based not on the coercive force of law but on the socializing force of a life under just conditions, for such a life simultaneously develops and reinforces the citizens' dispositions to justice"

Establishment Question
- arises in reflection on the Pol-Cul conditions of the value pluralism under which the ToJ should meet with favorable response in the contemp. public of citizens

2nd stage of NJust of Wos

..59
- how the NConcept of WOS can be situated in context of existing pol.cul and PubS - in order to meet with approval on part of citizens

Reflective equilibrium
- method that is already supposed to be at stage of theory construction
- refers to procedure characteristic of RecThe
- draws on exemplary expressions with purpose of explicating intuitive knowledge that subjects use to generate these expressions
- in Second Stage
-ToJ refers reflexively to context in which it should be embedded
- here meant to explain how and why its TheProp. mere articulate NSubs. of most trustworthy intuitions of everyday pol.pra, best traditions of PolCult
- thereby enabling ToJ to find seat in political life
- explicit articulation of principles and notions shared by dem. society
- OR propose those which are most congenial to essential convictions and historical traditions

Subsequent weakening of universalist claims
- Blurred meaning of his appeal to our best normative intuitions
- in context of justification - before phil. experts
- in context of public defense - before citizens of actual comm.
- If TOJ is based on culturally molded intuitions that none "of us" can reasonably reject
- what distinguishes PoJ from comm.'s enterprise to enter into pol-selfunderstanding regarding norm. basis of its common life
..60
- if latter is aim - phil.justification can at best clarify / catalyze

"overlapping consensus"
- in 2nd stage - to explain how free insts. may again allegiance necessary for endurance given plurality of ComDocs
- text itself lends itself to multiple interpretations
- is JR only dealing with stability of just society given de facto plurality of WVs
- or is it meant to explain how reformist improvements of existing institutions within present circumstances of dem can be accepted
- Assuming the latter

In PlurSoc
- ToJ can expect acceptance only if avoids taking sides between competing WVs
- Absence of RMA - given burdens of reason - those imposed on finite minds by ideal character of claims
- Holds all the more for practical discourses - answers can only be provided within horizon of life project presupposed as valid

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- disagreement among life plans reasonable
- ToJ must limit itself to narrow pol-mor questinos of principle - for which OC can be expected

PostMP ToJ - Based on Weak, Thin, Formally defined CoG
- represents a set of intersecting Nstatements
- on these sets - CompDocs can overlap - be they interpretations of self, world, ethical, religious, MP
- competing CompDocs must acknowledge conditions of PMP thinking
- method of avoidance - existing differences between competing PVs can be moderated so that SocCoopMuRe can be maintained or how a public understanding could arise consistent with historical conditions and constraints
- realizes that pluralism would have to dev. and intensify if PoJ assumed a concrete shape in BasInst

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Rorty on Rawls
- Misses reconstructive meaning of RefEq - takes it to be an effort to achieve ethical self-understanding
- Has thoroughly historicist and antiuniversalist attitude
- Hasnt provided impartial judgment of moral-political questions - rather a historical-sociologicla description of the intuitions of justice prevalent in US today

Rorty's interpretation
- Involves collapsing two stages of argument, ignores effort at justification of PoJ
- If EthSU only aim - self reassurance of acceptance not necessary
- Lack of accomodating culture cannot be used to falsify PoJ considered V by parties in OP

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- PSup of OP - elucidate MPOV
- ultimately anchored in symmetries of mut.recog. of comm.a.subjects

Conditions of MPOV
- not the same as conditions under which we are disposed to act based on MInsight
- motivational thrust sought by Rawls - found in pol.cul of US
- Pol.Cul challenged by class and race conflicts - renewed and revitalized with new interpretations

Dworkin
- Searches for less contingent way of  embedding NThe
- Expects theory to take on burden of justification for abstract principles hanging in midair
- also seeks for theory to give principles ethical foundation
- Opposes separation of CoJ from more embracing, concretely structured  projects of well-spent life
- in place of deontological priority of right over good - wants liberal ethic for pluralist societies
- formal enought to enable reasonable disagreements
- subst. enough to constitute motivational base for implementation of PoJ
- Ethics and politics should be connected - liberal political morality should be construed as continuous with philosophical views about the good life

Dworkin's problem
- ethics which make substantive statements - premises remain confined to particular interpretations of self and world
- ethics which are formal - at best consists in elucidating procedure of ethical discourses aimed at SU

Common problem
- resistant reality which critical reason seeks to keep in touch
- made up of pluralism of conflicting views of good life
- also of harder material institutions and action systems

Rawls
- Concerned with legal implementation of PoJ grounded abstractly
- Doesn't address the relation bw positive law and poljustice
- concentrates on questions of the L of law without concern for the legal form as such - the institutional dimension of law
- what is specific to legal validity - the tension bw V and F doesn't come into view
- within law itself
- as an external tension
..65
- facticity, reality, then, is reduced to the fact of pluralism
- doesn't refer to actually institutionalized deMaP or soc/pol. developments which may run counter to const. principles


SocC approach to NatLaw
- Rel BFN arose at a different level
- RNatLaw - distinguished posLaw and M - took into consideration tension
- Realistic focus - not only on culture, but on dev. of const. state and its social basis
- SocThe with XPOV - simply overlook normative self-undersanding of LS


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2.3 Parsons versus Weber - Law and Social Integration

Necessary Dual Perspective
- without XPOV - philosophical concepts are empty
- without IPOV - sociological theory remains blind

Weber and Parsons
- Operate with notion that ideas and interests interpenetrate in SocOs
- Institutionalized action - selective realization of cultural values under situational constraints
- SocOs - lend reality to normative patterns of behavior
- specify values with regard to typical situations
- integrate values with regard to interest positions

Situations
- offer actors more possibilities than can be realized in action
- if each participant were to choose one alternative from range, based on expectations of success
- permanent conflict would result - contingent confluence of ind. selections
- even if actors reflectively adjusted to expectations of other's expectations
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- no stable order can emerge


Durkheim
- explained formation stability of behavior patterns
- in comm. preestablished consensus on set of ISub shared values - orient inds.
- explained free individuals' binding to norms - which would be experienced by free actors as externally imposed coercion - unless these are made their own
- converted into own motivations
- sociological translation of IK's autonomy
- grounds the obligation to transpersonal imperatives in personal insight - not the same as mere freedom of choice
- requires symmetrical rel. bw
- moral authority of existing SocOs
- self-control anchored in personality system
- insti. values must correspon with internalized values
- account for motivation
- not usually repression free
- does result in an authority of consicence that goes hand in hand with a cons. of AU

Weber
- SocO can only be maintained in the long run as L Orders
- V of O - more than mere existence of uniformity of soc.a det. by custom or self-interest
- custom - practices based on a dulled, somewhat mechanical habituation
- LOA - requires a cons.orientation to consensus presupposed as V
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- consensus - exists when expectations of the behavior of others are realistic - objective probability that others will accept these as valid
- SocA based on consensus - consensual action
- LO - rests on Vconsensus to extent that ideas/values incorporated are ISubRecog
- Social relationship can be considered an O if the conduct is oriented toward determinable maxims
- O is V if orientation to maxims occurs, among other reasons, because it is regarded by actor as obligatory or exemplary for him
- O adhered to based purely on expediency - less stable than based on custom - corresponding behavior has become habitual
- O with prestige of being considered binding with the prestige of L
- Consensus requires external guarantees - if not grounded on religious authority or in purely value-rational belief
- expectation of L of SocO is stabilized by convention or law
- convention
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- when soc.V is externally guaranteed by general and practially significant reaction of disapproval  toward deviating behavior
- law - if conformative behavior is guaranteed by threat of sanctions applied by staff engaged in enforcement
- Consensus relies on an amalgam of reasons and empirical motives - reasons differ according to whether they derive from mythic narratives, rel. WVs, MPdocs, or pragmatic/ethical/moral use of practical reason

Ambivalent nature of Inst. - reflected in mixed validity basis of consensu
- Interests can be satisfied through generalized behavioral expectations, in long run, only if interests are connected with ideas that justify NVC
- Ideas can gain broad empirical acceptance only if they are connected with interests that lend them motivational force
- Methodological consequence - analysis possible from above and below - RecSocDisc of Law must do justice to both

IPOV - Participants
- aims at normative self-understanding of LS
- ideas and values by which one can explain the claim to L or ideal V of LO
XPOV - Observer
- aims at total complex built of beliefs about L, IntP, Sanctions and circumstances
- the logic of the situation that explains the empirical validity and de facto acceptance of legally inst. expectations

Weber - corresponding distinction - bw legal and sociological POV
..70
- legal POV - objective meaning within LProp
- sociological POV - legally regulated practice
- for which subjective ideas of meaning and V of LProp may play a role

Sociology of Law
- LPOV - What is instrinsically valid as law?
- What NMeaning ought to be attributed in correct logic to a verbal pattern have the form of a LProp.
- SPOV - What actually happens in a group owing to the probability that persons engaged in SocA consider norms as V and act according to them - orient conduct towards norms
- Relegates LPOV to jurisprudence - emphasizes distinction of POVs rather than interconnection
- Doesn't grasp that own work as sociologist includes both

..71
Besides differentiation taking place in Subs. areas of law, webet pursues rationaliazion of law from two POV
- the gen. and sys refinement of legal programs, remedies and procedures
- changes in cogn. V bases of law
- Schluchter - reconstructs variation in levels of justification of leDe by following Kohlberg's model of dev. stages in moral consc.
Summary
- Weber's distinction bw revealed, trad. deduced or nat. law and enacted (pos.) law  and formal and subs. legal Rion
- Weber distinguished bw proc. and subs. aspects of law, treated Rion of law from both POV but didn't give each equal weight
- Rion of legal proc and foundation of law - historically related but analytically distinct
- leg.prod. becomes more logical, found. becomes more abstract and universal and becomes secularized, IOW shifts from principles transcending law and those inherent to it

Process of positivization of law and diff.ion bw law and morality - result of Rion
- Metasocial guarantees for LegalO, but doesn't eliminate noninstrumentalizable quality of law's claim to L
- Disenchantment of rel.WVs
- undermines two kingdoms of law - sacred and secular, with the latter subordinated to the latter
- also leads to reorg.ion of LV - transposes basic concepts of morality and law to postconv. level

..72

Notion of norms as postively enacted, changeable AND criticizable, needing justification
- dev. along with distinction bw norms and PoAction; idea that norms should be gen. from principles and by voluntary agreement; concept of lawmaking power of privately autonomous legal persons
- Luhman - doesn't go far in saying - law made by decision - selected, AND valid by decision - contingent, alterable
- Positivity of PM law - construction and dev. of LO can only occur in light of rationally justified, hence universal, principles

Internal connection bw principles of enactment and justification
- Analyzed in terms of legally regulated action - on the model of voluntary association based on rationally agreed-to enactment
- Assumes consensus on legality of rules that combines both moments in ideal-type fashion
- enactment valid in that it has been - positively enacted in accordance to existing law of association AND had been rationally agreed to
- R of agreement - members submit themselves to coercion of ST sanctioned legal provision on basis of Rconsensus

..73

Weber's types of law only serve as guides to investigate types of L authority
- emphasis on fxRel  bw law and bureaucratic domination of RST - specific contribution of law to SocInt not emphasized
- ConST - draws L from  aspects of the legal medium thru which polP is exercised
- abstract rule-structure of legal statutes
- AU of judiciary
- AdST's bound to law and is Rly constructed

Parsons
- Examines ConST from POV of constitutionalization of PolP
- Structurally constrained by the RVbases of modLaw - process fosters dem. mode of Lion - anchored in CivSoc, PolPubS, modCnship
- term "societal community" - core sphere from which each diff. SocS is to have dev.
- includes all mechanisms of SocInt
- symbolic practices - rites, rel.cults, nat.ceremonies - secure SocSol
- second order insts. - M, law - regulate typical action conflicts - come to the rescue when the stability of inst.ized first order expectations is in danger
- M and law - like safety nets
..74
for int. performances of all other InstO
- self-referential normative structure devel. within tribal societies - with archaic legal practices - arbitration, oracles, feuds
- Law - LO that has become refx w regard to inst.ion
- forms nucleus of soc.com. - central structure of soc. in gen

Parsons - examines SocEvo of law - own function of securing SocSol
- in tribal soc - law interwoven with other Ncomplexes - remains diffuse
- in transition to Civ.ion - partially AU law dev.
- evolutionary step - a form of STOrg dev. in which law and PolP enter into synthesis
- ST makes Inst.ion of proc. for legal adjud. and enforcement - have prior superordinate status in rel to contending parties
- ST consts self as legally structured hiearchy of offices - L itself thru legal form in which Pol.P is exercised
- ST-sanctioned law and legally exerc. PolP reciprocally require one another


Rels of law and pol and soc
- Weber - law as part of PolS
- Luhmann - law as indep. SS
- Parsons - legal dev. - connected w/ evolution of soc.com.

..75

- in modSoc - socCom dev. into civSoc
- diff. from capEco
- inherits respo for SocInt of SOC as whole

Parsons
- focus on internal aspects - limited to value generalization and inclusion - inclusion of all members of soc in assoc of free and equal legal person AND moral universalism underlying V of modern law
- focus on external
- Soc.Struc of earlyMod - dom. by process in which an ecoS steered thru $ medium diff. from Pol.O steered thru P
- formation of two SS - stimulates sep.ion of civ.Soc from Eco and ST
- trad. forms of comm. - mod.ized into CivSoc - diff. from other CultS
- need for integration arises in new way with these processes of diff
Pos.Law's response
- $ and P are anchored in LW thru legal.inst.ion of Markets and Bureau.Orgs.
- interaction contexts - juridically structured - legal recogn. so legal claims can be made - changing conflict managment from mode based on habit loyalty trust
- as nec. complement to juridification of potentially all soc.rels - dem.cnship univer.ized - heart of cnship - polpart.rights
- exercised in civ.soc - network of vol.assoc protected by basic rights as well as in forms of comm. w/in PPubS produced thru mass media

..76

- pos.ion of law nec. results from Rion of Vbasis
- ML - stabilize behav.expec. in complex socity with struc.diff. LWs and fx indep. SS
- only if law as regent for soc.com. now civ.soc. can maintain inherited claim to Sol. in abstract form of acceptable claim to Ly

- MLS - redeem promise thru univ.ion and specification of citizenship
- soc.com. based on equality - end of long process of undermining L of particularistic bases of membership - rel. ethnic affiliation region locality hereditary position
- basic theme of equality - long antecedents
- first crystalized in conceptions of nat.rights
- current prominence of poverty and race problems in US
- owed to deep moral repugnance that conception of inherently lower class / race, arouses in modern societies, despite vociferous objections to mod.egal. among certain groups

In dev. of civSoc as social basis for inclusive processes of OWF, Parsons stresses the sign. of equalizing education opportunities
- more gen., uncoupling cultural knowledge from class structures
- edu. revolution synthesizes themes of industrial and dem. rev. - equalO and equal citizenship
- polCul conditions for responsive PPubS
- also emphasized by Rawls, and rightly so:
- "the more modern legal systems actually redeem their claim to legitimacy in the currency of effective civil rights, the more the criteria for equal treatment come to depend on ever more inclusive processes of public communication."

MLaw - as transmission belt of solidarity
- demanding structures of MRecog we know from facetoface interaction
..77
- transmitted in abstract but binding form to anon. and Sys.med. relationships of a complex society
- empirical reference - gradual extension of const. rights in England - based on scheme:
- civil - rights against the ST protect legal subject against gov. infringements of life liberty and property
- political - rights of pol.participation - make active citizen participation in DOWF possilbe
- social - social entitlements grant clients WS min. income and soc.secu.
- Marshall studies progressive inclusion of citizen in connection with processes of capitalist modern.ion
- Gidden focus on role struggles and social movements
- Other factors - non-class based social movements, migrations and wars, above all
-Factors stimulating jurid.ion of forms of inclusion - also affect pol.mobilization of pop - helping activitate rights that citizens already possess
- Classification of rights has also come to include cultural rights and new kinds of civil rights for which feminists and ecological movments today strugge in particular

"Inclusion" in sociological theory
- largely linear dev. connected with concept of citizenship
- in increasingly fx diff soc - more inclusive rights acquired by inc. num of people - and participation in inc. num. of SS
..78
- linear progress picture - insensitive to increases and losses in AU
- blind to large differences in actual use made of citizenship that allows inds. to play role in dem. chaning own status
- only rights of PolPart ground citizen's reflexive, self-referential legal standing
- negative liberties and social entitlements - can be paternalistically bestowed - without dem. as nec.

Even where all three are institutionalized
- negative rights and social entitlements are janus-faced
- historically speaking, Lib.rights crystalize around social position of private property owner
- from fx POV - one can see these as inst.zing MEco
- from NPOV - guarantee basic private liberties
- social rights
- from fx POV - installation of welfare bureauc.
- from NPOV - grant compensatory claims to just share of social wealth
- both lib and soc. rights can be seen as legal basis for soc.AU that makes Pol.rights effective
- rels are empirical, nor conceptually necessary
- these rights can also indicate privatistic retreat from citizen role - citizen role reduced to clients rel to admin.

SS dev. of own logic - encourages civil privatism, selective use of citizenship
..79
- Eco and AdSt - tend to close themselves off from environments, obey only internal imperatives of $ and P
- explode the model of a legal community that self-dets. thru common practice of associated citizens
- w/in citizen in WelST - tension between extension of private and civic autonomy and normalization
- Parsons - treats inclusion and value gen.ion as neutral dimensions of sysInt
- loss of focus on Ncontents and Soc.Int.


Law distinct from Morality
- law - modern enacted law
- claims to be L in terms of its possible justification as well as binding in its interpretation and enforcement
- not just a type of cultural knowledge but also an important core of inst. orders
- two things at once - system of knowledge and system of action - text - composed of legal props and interpretations, and as Inst - complex of NRegA
..80
- motivations and value orientations are intertwined in law - immediate effect on action in way Mjudgements do not
- highRy connected with legal.inst. - distinguished from quasi-natural inst.O
- incorporate doctrinal knowledge - articulated and systematized and interwomen with principled morality


Dual perspective
- avoid holistic conception of society - the people; association of free and equal citizens - inappropriate as models for society in toto
- comm.concept of LW - breaks with idea of whole composed of parts
- const. from network of comm.actions - branch out thru social space and historical time
- live off sources of cultural traditions and LegitimateOrders as well as depend on identities of socialized inds.
- LW - neither association, union, collectivity
- socialized individuals could not maintain themselves as subjects at all if they did not find support in the relationships of reciprocal recognition articulated in cultural traditions and stabilized in legitimate orders and vice versa
- comm.practice in which LW is centered - issues equiprimordially from the interplay of cultural reproduction social integration and socialization
- culture, society, personality mutually presuppose one another
- normative concept of legal comm. as associa... too concrete for social theory

From vantage point of TCA
- SS - law - as legi.o that has become reflexive - belongs to the society component of LW
- Just as this reproduces itself only together with culture and personality
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structures which flow thru comm.a
- leg.act too constitute medium thru which insts. of law simultaneously reproduc. themselves along w/ ISubly shared legal traditions and individual competencies for interpreting and observing legal rules
- as part of societal component - legal rules const. higher level of leg. orders
- also are represented in two LW components - legal symbolism and as competences acquired via legal socialization
- all three components share in prod. of legal.a

Law - includes all comm. oriented by law
- legal rules refer reflexively to function of soc.Int. directly fulfilled in process of inst.ion
- not only keeps one foot in medium of OL - also accepts messages that originate there and puts these into a form that is comp. to special codes of P-steered AdST and $-steered Eco
- language of law, unlike moral comm., can function as a transformer - in soc.wide comm. circulating bw S and LW