Law as a Social System
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
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TL;DR: This paper revisited the single versus multiple-objective debate on the theory of the firm Firms are conceptualized as complexity reducing systems st. drawing on Luhmannian social systems theory.
Abstract: Drawing on Luhmannian social systems theory, this article revisits the single- versus multiple-objective debate on the theory of the firm Firms are conceptualized as complexity reducing systems st
17 citations
Cites background from "Law as a Social System"
...Yet, “(u)nlike theories of ‘open’ systems, which are premised on society’s adaptation to its environment, closed systems are only open to what they construct for themselves, and adapt only in response to what they perceive, internally, to be problems” (Luhmann, 2004, p. 48)....
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TL;DR: In this article, a generalised symbolic media (GSM) concept is defined and a robust theory of integration can be posited that does not sacrifice the importance of regulation (control) or meaning (meaning).
Abstract: A central and long-standing theoretical problem in sociology concerns how differentiated social units are integrated. This problem, however, has been peripheralised since the decline of functionalism, while legitimation and regulation/power-differentials have moved to the forefront. This article argues that by reconceptualising the concept, generalised symbolic media, a robust theory of integration can be posited that does not sacrifice the importance of regulation (control) or legitimation (meaning). This paper extends both the Simmelian and functionalist versions of media by: (1) precisely defining the concept; (2) examining its two forms-a specialised institutional language and as an external referent of value; (3) elucidating the three modes of orientation various media impose; and (4) extending the function of media beyond (social) exchange to include other institutional processes such as communicative action, performance, and ritualised interaction. Ultimately, a reconceptualised theory of generalised symbolic media offers sociology a mechanism that simultaneously highlights the diversity found across institutional spheres, as well as the limits humans have in dealing with the problems posed by differentiation.
17 citations
Cites background from "Law as a Social System"
...In Berman’s [1968] analysis of the former Soviet Union’s legal profession, he demonstrates that justice and confl ict resolution—instead of being rooted in legal criteria and norms as one would expect in a relatively autonomous legal sphere [Luhmann 2004; Abrutyn 2009]—were totally colonised by the political spheres unique blend of power and loyalty [Huskey 1982]....
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...…he demonstrates that justice and confl ict resolution—instead of being rooted in legal criteria and norms as one would expect in a relatively autonomous legal sphere [Luhmann 2004; Abrutyn 2009]—were totally colonised by the political spheres unique blend of power and loyalty [Huskey 1982]....
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TL;DR: The various constitutional reforms proposed seem to be obvious and long overdue - abolishing the post of Lord Chancellor; setting up a Supreme Court separate from the House of Lords; and establishing a judicial appointments committee but what they fail to mention or address is much more crucial and revealing.
Abstract: This paper addresses the central jurisprudential issue of the connection between judges’ political commitments and adjudication. Concentrating on the contested question of whether judges are and can ever not be “activist”, it argues that adjudication is inevitably and unavoidably political in nature: there is simply no other way for judges to fulfill their responsibilities other than by resort to basic political values. By examining the recent decision of the SCC in Doucet-Boudreau, the paper offers a very different account of how judges can meet constitutional expectations in contemporary Canada.
17 citations
01 Jan 2017
TL;DR: Theoretical framework for the policing of Radicalization and its applications in the public sphere and the politics of Terror are explained.
Abstract: ............................................................................................................................. vi List of Tables ..................................................................................................................... ix List of Figures .................................................................................................................... xi Chapter 1: Introduction ....................................................................................................... 1 Chapter 2: Theoretical Framework ..................................................................................... 9 Chapter 3: Methodology ................................................................................................... 24 Chapter 4: The New Politics of Terror ............................................................................. 43 Chapter 5: Seeing Radicalization Through Law ............................................................... 85 Chapter 6: Discourses of Radicalization in the Public Sphere ....................................... 107 Chapter 7: Scientific Discourses and Radicalization ...................................................... 147 Chapter 8: The Policing of Radicalization ...................................................................... 174 Chapter 9: Conclusion ..................................................................................................... 224 References ....................................................................................................................... 235
17 citations
TL;DR: In this paper, the authors argue that the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law.
Abstract: In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
17 citations
Cites background from "Law as a Social System"
...…eigen-value—namely, a value constituted by the ‘recursive performance of the systems’ own operations [… which] cannot be used anywhere else’ (Luhmann 2004: 124)—validity itself is, importantly, without either intrinsic value (Philippopoulos-Mihalopoulos 2010: 83) or its own normativity…...
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...Validity is the marker for the unity of the legal system and thus, as the symbol of the autopoiesis of its communications, the closest the legal system comes to a self-description of its operative function (Luhmann 2004: 122–123)....
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...…of the legal system to ‘establish and stabilize societal expectations through the handling of disappointment’ (Philippopoulos-Mihalopoulos 2010: 71; Luhmann 1985, 2004) and thus to provide constancy within society, this supposed ‘failure’ of the criminal law has the same effect as a genuine…...
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...…of the main tenets of systems theory—that is, the theory of autopoietic social systems as developed by Luhmann (see, for example, Luhmann 11 It would be counterintuitive to engage with substantive (value) considerations and then endeavour to accommodate these within a systems-theoretical analysis....
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...Systems are structurally coupled when they presuppose certain features of their environment on an ongoing basis and rely upon these structurally (Luhmann 2004: 382)....
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References
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TL;DR: In this paper, the authors discuss how legal pluralism engages with legal globalization and how legal globalization utilizes legal plurality, and provide an outlook on the future of global legal plurality as theory and practice.
Abstract: Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines—comparative law, conflict of laws, public international law, and European Union law—have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism—the definition of law, the role of the state, of community, and of space—are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practic...
287 citations
Posted Content•
TL;DR: A growing body of literature in organization studies draws on the idea that communication constitutes organization, often abbreviated to CCO as discussed by the authors and introduces Luhmann's theory of social systems as a prominent example of CCO thinking.
Abstract: A growing body of literature in organization studies draws on the idea that communication constitutes organization, often abbreviated to CCO This paper introduces Luhmann’s theory of social systems as a prominent example of CCO thinking I argue that Luhmann’s perspective contributes to current conceptual debates on how communication constitutes organization The theory of social systems highlights that organizations are fundamentally grounded in paradox because they are built on communicative events that are contingent by nature Consequently, organizations are driven by the continuous need to deparadoxify their inherent contingency In that respect, Luhmann’s approach fruitfully combines a processual, communicative conceptualization of organization with the notion of boundary and self-referentiality Notwithstanding the merits of Luhmann’s approach, its accessibility tends to be limited due to the hermetic terminology that it employs and the fact that it neglects the role of material agency in the communicative construction of organizations
114 citations
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TL;DR: The concept of transnational legal pluralism as mentioned in this paper has been proposed to understand the evolution of law in relation and response to the development of "world society" in the context of regulatory governance.
Abstract: This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation state. Within the nation-state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalisation in a different light. Rather than describing the advent of globalisation as an end-point of legal development, the transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further consequence in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structured global legal order. This article’s proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to both complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.
81 citations
TL;DR: In this paper, the authors present a perspective on the interaction between formal and informal institutions in spatial planning in which they transform each other continuously, in processes that can be described and analyzed as ongoing reinterpretations.
Abstract: In this article, we present a perspective on the interaction between formal and informal institutions in spatial planning in which they transform each other continuously, in processes that can be described and analyzed as ongoing reinterpretations. The effects of configurations and dialectics are often ambiguous, only partially observable, different in different domains and at different times. By means of analyses of key concepts in planning theory and practice, this perspective is illustrated and developed. Finally, we analyze transformation options in planning systems, emphasizing the limits of formal institutions in transforming formal/informal configurations, and stressing the importance of judgment and conflict.
79 citations
TL;DR: A review of the preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism can be found in this paper, where the authors suggest that we ought to revisit legal sociological insights into the emergence of legal pluralism.
Abstract: Transnational law, since its iteration by Philip Jessup in the 1950s, has inspired a league of scholars to investigate into the scope, doctrine, sources and practice of border-crossing legal regulation. This paper reviews much of this preceding scholarly work and attempts to contextualize it in debates around global governance and global constitutionalism. These debates are no longer confined to international lawyers or political scientists. Together with anthropologists, sociologists, geographers and legal philosophers and legal theorists, these scholars have been significantly widening the scope of their investigation. The current, multi - and interdisciplinary research into the prospects of political sovereignty, democratic governance and legal regulation on a global scale suggests a further continuation of such intellectual bricolage and collaboration. The here presented paper builds on a larger research project into the methodology of transnational law and suggests that we ought to revisit legal sociological insights into the emergence of legal pluralism to make sense of today’s co-evolution of ‘formal’ and ‘informal’, ‘public’ and ‘private’ laws – and social norms.
65 citations