Contemporary Sociology: A Journal of Reviews

http://csx.sagepub.com/ Re-conceptualizing Law and Politics: Contributions from Systems Theory

Domenico Tosini Contemporary Sociology: A Journal of Reviews 2006 35: 123 DOI: 10.1177/009430610603500209 The online version of this article can be found at: http://csx.sagepub.com/content/35/2/123.citation

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White, Harrison and Cynthia White. 1965. Canvasses and Careers. New York: John Wiley. Wolfe, Tom. 1975. The Painted Word. New York: Farrar, Straus and Giroux.

Re-conceptualizing Law and Politics: Contributions from Systems Theory DOMENICO TOSINI
University of Trento (Italy) domenico.tosini@soc.unitn.it Eleven years after its first German edition1, we can now benefit from Klaus A. Ziegerts admirable English translation of Niklas Luhmanns most ambitious statement of a sociological theory of law, intended as part of a broader theory of society2 or indeed, at even more abstract level, of a general theory of social systems.3 According to Luhmann, social systems have to be understood as (operatively closed, to use his expression) networks of communications. Communication is the operation characterizing social systems within the more embracing set of systems (other members of the set are living, nervous, and psychological systems), and as such delimits the field of sociology. Among the social systems themselves, further distinctions have to be drawn between interactions (based on the co-presence of individuals), organisations (consisting of networks of decisions), and societies (the systems that include everything that is social). When it deals with societies, systems theory is particularly interested in the development of societal differentiation. Here, Luhmann distinguishes, within the course of history, four forms of differentiation: segmentary differentiation (the fundamental principle in archaic societies), centre / periphery differentiation (as in the configuration of most empires), stratification (characterized by the hierarchy of different strata or classes), and, finally, functional differentiation (the organisational principle of modern society). In functional differentiation, various units, identified as functional (and operatively closed) subsystems, maintain their own autonomy in the fulfillment of distinctive social functions. Lawthe central concern of
1

Niklas Luhmanns Theory of Politics and Law, by Michael King and Chris Thornhill. New York, NY: Palgrave MacMillan 2003. 288 pp. $29.95 paper. ISBN: 1403998019. Law As a Social System, by Niklas Luhmann, translated by Klaus A. Ziegert, edited by F. Kastner, R. Nobles, D. Schiff, and R. Ziegert. Oxford, UK: Oxford University Press, 2004. 512 pp. $175.00 cloth. ISBN: 098262388. Luhmanns Law as a Social Systemis one of these subsystems, along with the economy, science, the mass media, art, politics, and religion. The differentiation of all subsystems, including law, is contingent upon a complex social evolution which transcends the hierarchical structure of pre-modern societies. Each subsystem consists of specific communicative processes governed by their own criteria, which preclude the interference in its decision-making by external (i.e. environmental) attempts to determine it. As a result, modern society has to be understood as a polycentric social system. In the case of the legal system, the conventional characterization of modern law as positive law can be more adequately re-conceptualised in system-theoretical terms as an operatively closed network of communications which constantly refers to its own previous decisions, expressly based, in turn, on legal principles and procedures (Chap. 2). Two essential requirements clarify further the differentiation of the modern law (or of other subsystems). First of all, an appropriate functional specification, such that one, and only one, social function is assigned to law by the evolutionary processthe stabilization [over time] of normative expectations. That is, law fixes and establishes social expectations which legal procedures have selected as valid for social interactions, by immunizing them against counterfactual (to
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Niklas Luhmann, Das Recht der Gesellschaft. Frankfurt: Suhrkamp 1993. Id., Das Gesellschaft der Gesellschaft. Frankfurt: Suhrkamp 1997. Id., Social Systems. Stanford: Stanford University Press 1995.

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use Luhmanns expression) circumstances in which they are not fulfilled (Chap. 3). In this sense, law chiefly attends to social problems related to the passage of time, by binding it (p. 142 ff.). The second aspect of the differentiation of modern law is that its internal communications relate to one, and only one, specific binary coding (Chap. 4). As with all other subsystems, the operations of law involve assigning one answer OR the other to a distinctive question, which in the case of law can be formulated as: legal or illegal?. Consequently, the legal system can be defined as the network of communications oriented to the legal / illegal code, and which operate exclusively by applying such a distinction on the basis of expressly legal criteria (p. 98 ff.). The emphasis this approach places on the autonomy of law does not mean that this system is either static or isolated from its environment, which has other subsystems as its components. On the contrary, law is a dynamic system evolving according to specific mechanisms and is connected through certain devices to those other subsystems. To understand the evolution of law, and that of other social systems, it is useful to cross disciplinary lines and draw on certain theoretical developments in the theory of evolution. In this manner, one can identify the basic mechanisms of legal change (Chap. 6): 1) variationthe communication of some unexpected normative expectation; 2) selectionthe decision, through specific legal procedures (such as court proceedings) to either accept (positive selection) or reject (negative selection) the new expectations; 3) maintenance of the (dynamic) stability of the systemperformed by the legal doctrine and higher courts, which, after positively selecting new expectations, incorporate them into the existing system, and at the same time modify the latter. Generally, the evolution of the legal system reflects a tension between the need for an increasing complexity able to deal with the environments demands (socalled requisite variety) and the need for the internal consistency of legal decisionmakinga need to which the legal doctrine and higher courts attend via specifically legal argumentations (Chap. 8). In highly abstract terms, justice (identified by Luhmann as the formula for the contingency of legal system) can be understood as the perennial
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search for the compatibility between both needs. Under modern conditions, it consists in the adequate complexity of consistent decision-making (Chap. 5). The tension between these two elements (increasing complexity versus consistency) corresponds to the relationship between the two most important internal components of the legal system, namely legislation and contracts (at the periphery of legal system) and the courts (at the centre) (Chap. 7). On the one hand, legislation and contracts represent the constant production of variety inside the legal system by means of ever new expectations, which create their specific binding effect on courts decision-making. On the other hand, this production has to be supervised and regulated, because it inevitably generates problems of interpretation and consistency. Court activity focuses exactly on these problems and, in so doing, generates its own binding effect (i.e. judge-made law) on legislation and contracts. Since the two components constantly observe and influence each other, the relationships between legislation and contracts with the courts should be conceived as being symmetrical or circular, rather than hierarchical. With regard to external relations, again the autonomy of the legal system does not entail its isolation from other subsystems making up its environment, such as politics and the economy. There are certain forms of connections, certain structural couplings whereby law arranges its own relations with other social systems. A states constitution, for instance, can be characterized as the structural coupling between legal and political systems (Chap. 10).4 As such, it allows the two systems to exchange both resources and influence with one anothera relationship which presupposes the autonomy of both systems. Consequently, parallel to the differentiation of law, that of the political system (as well as the comparison between them) becomes a further, central topic of systems theory. A very significant contribution to this topic, based on an impressive command over Luhmanns massive oeuvre, is made in
4

Id., Verfassung als evolutionre Errungenschaft, Rechtshistorisches Journal (1990), 9: 176220.

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Michael King and Chris Thornhills Luhmanns Theory of Politics and Law. Their book includes some significant, recent Luhmanns essays in political theory inaccessible to the English reader.5 While it is also concerned with the legal system (Chap. 2), the book chiefly offers an elaborated discussion of the political system, focused on Luhmanns political theory and its view of the relationship between that system and law (Chap. 3). Each, as we have seen, is one among several subsystems of modern society. The political one is differentiated by its specific function of producing collectively binding decisions and by its specific internal code government/governed (double-coded in turn, under modern conditions, as the distinction government/opposition ). Moreover, like the legal system, the political system develops its own threefold, internal differentiation consisting of politics, administration, and the public (p. 86 ff.). What emerges is a complex argument stressing the specificity of the political system, as well as its decentralised position within the more comprehensive system of society. Both facts, however, suggest the unrealistic intent (underlying the expansion of the welfare state)6 of placing the political system at the centre of society and charging it with the solution of an endless variety of problems such as ecological ones (Chap. 5). King and Thornhill see Luhmanns analysis as involv5

Id., Die Politik der Gesellschaft. Frankfurt: Suhrkamp 2000. See Id., Political Theory in the Welfare State, Berlin: Walter de Gruyter 1990; see also Gianfranco Poggi, Niklas Luhmann on The Welfare State and Its Law, Florence: EUI Working Paper 1985.

ing an ambitious attempt to de-construct the semantics of the European tradition, with special reference to the Enlightenment (Chap. 5). Luhmann characterized as sociological Enlightenment in his attempt, entails challenging conventional assumptions such as the anthropocentric perspective dominating modern social thought (there are significant similarities, here, between his thought and Derridas). Our brief and highly selective presentation of Luhmanns theory of law and politics cannot do justice to its sophisticated theoretical architecture. Each of the points mentioned signals a most relevant question that both legal and political sociology should address, such as the definition of law and politics, the structure of modern law and modern politics, the mechanisms underlying their evolution, their internal differentiation and the forms of their relations with their environment. Furthermore, I consider most significant Luhmanns commitment to a theory of law and politics (as well as one of the economy, science, art, mass media, art, and religion) as a part of a coherent framework focusing on the basic questions of sociologya commitment evident from King and Thornhills contribution (esp. Chapters 1 and 6). In this manner, Luhmann updates the original, classical project for a theory of society, a project essentially abandoned by contemporary sociology, in general, and by legal and political sociology, in particular. This is apparent from a perusal of contemporary periodicals, where too often social research appears as a collection of facts, not guided and inspired by appropriate theoretical paradigms. Luhmanns theory represents one of the most acute contributions to overcoming the theoretical deficiency affecting sociology today.

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