The master issue for the law and society field for the early 1990s may have been best described by the “crossing boundaries” metaphor that has been adopted, with variations, in the past few years as the theme of the programs of a number of professional associations whose members contribute to law and society scholarship. Apparently, in contrast to the recent past when issues of diversity and identity drew attention to differences of perspective, conflicts between cultures, the incoherence of authority, and the politics of interpretation, a move is being made to find and define the central enterprise that draws scholars together in the law and society field while avoiding the imperialism of particular perspectives or theories. The metaphor of crossing boundaries suggests respect for the boundary—for difference and for plural meanings, for integrity in separateness—and suggests a search for a concept of coherence that does not require a permanent bridging, merging, and unifying of starting points for understanding.

This article focuses on the Community Protection Act (CPA), the State of Washington's legislative effort to control sexual violence, and on the victim advocacy groups that played a prominent role in this effort. It is argued by some, most recently by republican criminologists, that victim advocates serve democratic ideals and introduce into criminal process important values and interests that are neglected by professionals. Others argue that victim advocacy tends to promote punitive policies that empower the state, jeopardize constitutional rights, and divert attention from causes to symptoms. The evidence gathered in this research lends credence to the critics of republican criminology. Victim advocates were not reliable carriers of republican values in their strenuous support of the CPA, the central provisions of which reduce civil liberties and promote exclusion rather than reintegration.

Scheingold, Olson, and Pershing (1994) have posed an interesting challenge to the republican perspective on criminal justice, and we attempt to meet that challenge here. But before considering their argument, we find it useful to set out the main elements in the republican position. In doing so, we summarize the approach in Not Just Deserts (Braithwaite & Pettit 1990) and in some followup articles (e.g., Pettit with Braithwaite 1993, 1994); the summary breaks down this approach, very loosely, into three axioms and eight theorems.

Stuart Scheingold, Toska Olson, and Jana Pershing (1994) draw from interviews with 15 people, including 5 leaders of victim advocacy organizations and 7 members of the state legislature, to show how a punitive ethos played itself out in legislation to control sexual violence. The lesson learned from Washington State's Community Protection Act (CPA) of 1989 is that members of victim advocacy organizations and grassroots social movements may practice a conservative law-and-order politics toward crime and justice. Scheingold et al. place their study within the terms of a debate, which they say has two sides. On one side are “republican and some feminist criminologists,” who “are sympathetic to victim advocacy because they see victims as natural spokespersons for republican/feminist values and policies” (p. 730). The other side contains liberals of various types, “including civil libertarians, just desert theorists, and others not readily identifiable with any general theory” (p. 734), “who see victim advocacy and/or republican criminology as a threat to the integrity of the criminal process” (p. 730). The authors conclude that while the Washington State victim advocates were both active players and pawns of politicians, “the net effect of victim advocacy is … substantially problematic for republican/feminist values and for sound crime control policy as well” (p. 731).

We are grateful for the thoughtful responses to our study of the Washington State Community Protection Act (Braithwaite & Pettit 1994; Daly 1994). These responses underscore the importance of pushing beyond our case study and point to a variety of promising ways to determine the extent to which the problems we uncover in Washington are typical and/or idiosyncratic.

At first sight, the vastly different litigation frequencies in West Germany and The Netherlands present a riddle, as both countries have a legal system tradition in common and their baseline of potentially litigious conflicts is very much alike. This study tries to find an explanation by disaggregating various kinds of civil procedures. The distinguishing variables are found in the presence or absence of institutions filtering disputes at the pretrial stage. While in The Netherlands plaintiffs are offered a bigger set of alternatives for dispute resolution, the German court system, being very cost efficient, attracts masses of petty claims. Thus, it is unnecessary to look for attitudinal differences or even different “litigation mentalities” in the neighboring cultures. The institutional infrastructure is sufficient to explain why it is rational for Germans to use the courts and for the Dutch to avoid them.

The research reported tests the influence of judgments about the fairness of government lawmaking procedures on evaluations of the legitimacy of a national-level governmental authority through studies—two experiments and a survey—examining judgments about Congress. The influence of procedural justice on legitimacy is contrasted with the effects of self-interested judgments indexing agreement with congressional decisions. Although a sizable empirical literature already suggests the importance of procedural justice in shaping reactions to personal experiences with legal, political, and managerial authorities, recent studies have been inconsistent about the degree to which procedural justice findings generalize to national-level institutions. The findings of the studies reported here strongly support the argument that procedural justice judgments influence evaluations of the legitimacy of a national-level political institution. A further exploration seeking to find an influence of ethnicity, gender, education, age, income and/or ideology on the psychology of legitimacy suggests that demographic differences do not influence the criteria respondents use to assess the fairness of decisionmaking procedures. The findings suggest that procedures provide a viable basis for maintaining public support in the face of differences in individuals' policy positions and background characteristics.

This article analyzes the social origins of evidence. Applying Black's theory of partisan behavior to a variety of empirical materials indicates that the ability to attract supporting evidence is differentially distributed across social life. Thus, the amount of investigative effort legal officials put into a case, the willingness of people to testify, and the supportiveness of witness testimony all increase with the social status of the principal parties and the number of intimate ties they have. In addition, the quality, or credibility, of the evidence parties attract varies directly with their social status and the number of distant ties they have. Far from creating a factual component divorced from the social dimension of the case as is often believed, the evidentiary process helps to transform the attributes of high status and social ties into successful legal claims.

Research has shown that direct experience of legal authorities' unfairness or rudeness lowers unfairly treated individuals' support for legal authorities in general and fosters noncompliance with laws. Many people, however, get information about legal authorities and institutions indirectly through conversations with others. To highlight the possible ripple effects of specific enforcement contacts on the general population's support for authorities, we compare what taxpayers said happened in their tax audit interviews with what they tell other members of their social network. Because people are most concerned about others' image of them, this motivation for communication often weakens a bias toward negative messages. Our findings demonstrate that messages about fairness of decisionmaking, favorability of outcomes, and dignity more closely approximate the distribution of the sample of audited taxpayers' perceptions. We found support, however, for a bias toward negative messages in two situations: messages about instrumental quality and in the rare circumstance when taxpayers received undignified treatment and favorable outcomes. In this circumstance, the message does not have connotations for one's own image. We discuss the implications for legal socialization and the reservoir of societal support for legal authorities and institutions.

Jürgen Habermas has from the start had the goal of developing a normative democratic theory based on rational consensus. From The Structural Transformation of the Public Sphere (1989a; first published in 1961) to The Theory of Communicative Action (1984, 1987), Habermas has sought to elaborate the underpinnings for such a critical theory of democracy, one that is oriented to the participation of reasoning citizens. In many respects, Habermas's recent Faktizität und Geltung, while cast as a philosophy of law, bears the fruit of that labor by offering his long-awaited “radical” democratic theory. Habermas calls his theory of democracy “deliberative politics,” clearly aligning himself with those contemporary political theorists who emphasize public deliberation and participation. However, many faithful readers of Habermas may find his approach to legal and political legitimacy in Faktizität und Geltung somewhat surprising. Rather than defending participatory democracy directly, he instead embeds these radical democratic principles in a complex account of the political and legal institutions of constitutional democracies.

James Bohman's review (1994) contributes to an important goal for the American legal academy: bringing to us the recent focus on the role of law in society of Jürgen Habermas and, by extension, contemporary Frankfurt School social theory. These comments attempt to locate Habermas broadly in three discursive contexts. My purpose will be to suggestively examine whether and how the American legal reception of Habermasian ideas has been limited—the implicit rationale being that the reception is overdue. With almost all discussion of Habermas and law taking place in Europe, it seems we must ask, Why is there no [German] social theory in America, or at least in American law? After all, the United States became the home in exile for the Frankfurt survivors, and Habermas has been writing influentially in philosophy and political theory for more than 30 years. Yet, for reasons not altogether different from the revision and partial rejection of the other American exceptionalisms (socialism, labor politics, class formations, etc.), perhaps the question in fact should be more about the particularity of American treatment of the role of law in the reproduction of society than about Habermas and his ideas.

No living social theorist has worked harder or produced more on behalf of progress(ive) universalism and grand theory than Jürgen Habermas. Over the past 30 years, Habermas has sought to employ (and, in so doing, has enriched) a range of philosophies to advance the cause of human enlightenment and emancipation: Kantianism, the moral-developmental psychology of Kohlberg, the sociological Marxism of Offe and others of his own students, the philosophical pragmatism of Pearce, revived liberal Protestantism, the linguistics of Searle and others, and, now, even American legal liberalism. All these and more have been among the approaches he has tried and continues to try. As one of the world's leading public intellectuals, he has done battle with those who reject the emancipatory quest: whether they be German historians and politicians rewriting the past in the name of the nation and its elites or soî-disant postmodern radicals for whom particularity and irony are the only guarantors against oppressive rationalist homogenization and erasure.“

The forthcoming publication in English of Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy by Jürgen Habermas comes at a time when the nature and role of legal studies in the United States is being problematized. In both law schools and in the broader scientific and humanistic discussion of law (the totality of which, for the sake of brevity, I call legal studies), the consensus of more than a generation is breaking down, and a broad debate over what counts as interesting problems, adequate research, and useful results is emerging. This timing is central because Habermas has been a key figure in an important debate about the nature and prospects of social knowledge; a debate which has everything to do with the debate about the future of legal studies.

Patricia Steinhoff (1993) reviewed five books in her review essay “Pursuing the Japanese Police” but singled out my Forces of Order (Bayley 1991) for extended commentary because it was a “classic” that epitomized the “benign,” “friendly,” and “answers-for-America” (p. 830) school of writing about the Japanese police. Her review of my work, as well as the others, was insightful, knowledgeable, well argued, and fair. Some of her comments were strongly worded, but there's no fun in writing a review essay if you can't get off a few zingers.