"Colonization of LW" - impersonal media, $ and P, infiltrate LW
- Distort COMM. Practices
- F(x) integration - guided by instrumental / technical R
Up through TCA - view of the LAW ambivalent
- LAW - tools of emancipation - principle of dem. self-gov combated autocratic / monarchical gov
- but after initial emancipatory thrust - law's prominence grew out of need to adjudicate conflict between members of disparate citizenry.
- LAW as micro-manager - replacement of social solidarity formerly forged thru uncodified norms of COMM. ACTS. and R
- concern with SOC-WEL ST - pressures towards S incursions into LW
- greater range of rights - enforcement of which encroach into LW - individualizing legal claims.
- enforced thru. bureaucracies - impersonal central organizations
- settled under auspices of civil law - monetary compensation
In BFN, law as "social institution that arises out of the common will of a people who, before establishing themselves as legal consociates, are already a communication community held together by a linguistic bond."
- law - the instantiation of the primordial condition of LW actors who come together freely to regulate conditions of their common life
Law as social fact
- draws upon state's monopoly on P to compel citizens to align their conduct to the prescriptions of law
- self-referential system that because of its F in the eyes of the citizenry can evoke respect for the law beyond sheer compliance
In contrast to other critical theories of democracy - which view that value-creating power as being held by elites
- JH appears to be embracing normative theories of democracy - that views values as being the created by the consensus of citizens coming together to decide their fate collectively through representation
Habermas' tightrope
- between republican and liberal models of democracy
- proceduralist theory of democracy - stronger normative connotations that those in liberal model, weaker than those in the republican model
- "ultimate grounds of democracy must be founded not on the peculiar form that deliberations in the public sphere take, but on the unthematized institutionalization of procedures and conditions of communication that ultimately leads to thematized issues of democratic opinion-and will-formation"
On surface - indefensible
- JH wants to analyze implementation of dem.pro. w/o lapsing into reifying tendencies of theories which view creation of these dem.pro. as emanating from above - rather than activities of real, flesh-and-blood human beings
Implementation of this model - not possible
- BUT there is underside to the realities of inequality and differential power - hidden from participants themselves
- contains PSups of CommA and tacit injuction of DP
Ontological priority of DP
- Against philosophy of consciousness
- higher-level intersubjectivity of processes of reaching understanding that take place thru dem.pro.
Subjectless communications, relatively
- form arenas at both LW and S levels, in which ROWF take place
- idea owed to Parsons - conceptualization of the generalized media of interchange - $ and P
- Soc.L not zero-sum game - tableau of inflationary / de trends that range from oppressive totalitarianism to relatively free and open civ.dem.
Summary of entire argument:
"Once one gives up the philosophy of the subject, one needs neither to
concentrate sovereignty concretely in the people nor to banish it in
anonymous constitutional structures and powers. The 'self' of the self-
organizing legal community disappears in the subjectless forms of
communication that regulate the flow of discursive opinion- and will-
formation in such a way that their fallible results enjoy the presumption
of being reasonable"
- self of the self-organizing legal community disappears in the forms of comm. that regulate DOPW in a way that fallible results enjoy the presumption of being reasonable
JH's aim - to thematize what has heretofore been unthematized
- the role of R and DP - evidence that such practices are indeed operating in the real world
BUT he appears to discard emphasis on distinctions bw Rs
- law is based on instrumental / technical reason - limited to adjudicating conflict - case law
- law is NOT a theory of society - huge gaps in law's understanding of the ontology of social action and social life
IF JH is right
- ongoing textualization of SocL can viewed unproblematically - logical derivative of internal assumptions of dem. itself
- if all law abiding citizens are equal under law - and all citizens can participate through rights
- then there should be legal clarity regarding the dimensions across which citizen's rights can be assured
- this leads to process whereby persons' status sets are formally connected to protections of the subs. law apppropriate to that particular inst.
Ex. Sexual harrasment
- textualization of rules of behavior - seems to presuppose that heretofore unarticulated rules of behavior have somehow fallen into disrepair
- move away from Enlightenment's mind/body dualism - equates physical and mental harm - and is in the interest of "the livelihood and continuing legitimacy of any text"
- broader process of institutionalization
Much of social life involves battles over knowledge claims
- SocL as a pluarlity of actors negotiating the conditions of their existenc
- Institutions legitimate and affirm their existnec by producing official texts - providing monologic interpretation of a particular area of social life
- inst. - quasi-symbolic forms of understanding - in the face of multiple meaning and polysymbolic interpretation
- survive by ordering taken-for-granted knowled of essential segments of human activity
Text work to freeze world - into official sanctioned version of reality that is nothing more than textualization of that reality
- the attempt to capture social reality thru formalization reflects not only tendency toward arbitrariness - huge holes that exist in law's ability to make sense of the world
- law can be understood as a system imperative - intruding upon LW actitvity, and textualization of life as the colonization fot the LW
- Leading pathology of modernity - gradual infiltration of law in to LW activity
- informal understandings of life give way to formal rules codified in law - LW becomes increasingly impoverished
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