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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26 Jun 2017
TL;DR: In this article, a meta-argumentation approach is proposed to deal with interactions between national and foreign canons of interpretation in private international law cases, and the feasibility of a theory for arguing and interpreting in international law contexts, providing an argument-based conceptual framework that encompasses plausible interpretive interactions.
Abstract: This thesis is about argumentation schemes that help to deal with interactions between national and foreign canons of interpretation in private international law cases. In fact, many legal orders, like Italy, require that, in conflict of laws disputes, courts apply the relevant foreign law using canons of interpretation and rules of application of the original foreign system. Our research hypothesis is that, in interpreting the foreign rule, domestic courts incur interpretive divergences of many kinds among the involved legal systems. Foreign law interpretation may result in linguistic and/or conceptual misalignments, in normative and/or interpretive gaps, and in specific incompatibilities between inner and foreign canons of interpretation. By focusing on interpretive conflicts within one legal system, legal theorists and AI and Law scholars have not yet paid sufficient attention to the issue, even if pluralist logics and argumentation have been applied to legal pluralism and conflict of laws. The present study fills this gap in the literature: it explores the feasibility of a theory for arguing and interpreting in private international law contexts, providing an argument-based conceptual framework that encompasses plausible interpretive interactions. To this end, after addressing the epistemic concerns foreign law raises for domestic judges, the thesis gives a definition of cross-border interpretive incompatibilities and proposes argumentation schemes to reason with interpretive canons coming from different legal systems. An illustrative list of critical questions is used to evaluate the correctness of such interpretive reasoning. Lastly, the thesis presents the first formal developments of the study, based on the concept of meta-argumentation. It is possible to detect two main contributions to knowledge. First, this work identifies the components of foreign law interpretation, an activity with significant practical implications for legal systems today. Secondly, its argument-based analysis paves the way for further formal applications in the domain of AI and Law.
15 citations
Cites background from "Law as a Social System"
...Then, it also shows how legal reasoning could be seen as the foremost frontier of the conception of law as a system in all its articulations (Luhmann 2004, Lierman 2014)....
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TL;DR: In this article, the authors examine the relation between vagrancy and public disorder, a relation constituted by a dialecticism that is at once (dis)continuous and dis)connected.
Abstract: This paper explicates the relation between vagrancy and public disorder, a relation constituted by a dialecticism that is at once (dis)continuous and (dis)connected. This relationship is important not only to appreciate the place of public disorder vis-a-vis contemporary urban public space and social life, but historical vagrancy as well. The paper examines the refashioning of vagrancy, paying attention to the semantic legal reformatting of its constitution and how this process permits the regulation of essentially the same historical problems and concerns by translating them into legally sound language, visible in the shift from vagrancy to public disorder. This shift was necessary not simply to preserve the vestiges of vagrancy, now conspicuous in public disorder, but for the preservation of the images of, and imaginations about, Law, including its claims to justice. Loosely taking its cue from the visual culture movement which pays homage to the place of images in the ordering of the social world, the paper invokes (and, then, conflates) the concepts of image and imagination and explicates the manner in which the images of, and imaginations about, Law spearheaded the transmutation of the legal category of vagrancy by re-imagining the vagrant, a re-imagining which itself was the product not just of the Law's imagination, but, imaginations about the Law as well. The paper concludes by locating the place of the image and imagination to propounding a narrative of, and about, Law.
14 citations
Cites result from "Law as a Social System"
...2 In some ways, this is similar to the paradox inherent in autopoiesis, that is, in the systems theory of Niklas Luhmann (1989)....
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TL;DR: The current inclination, at the European level, to fund education in the form of projects radicalises the modern orientation towards the present as the attempt to bind a yet indeterminate future as mentioned in this paper.
Abstract: The current inclination, at the European level, to fund education in the form of projects radicalises the modern orientation towards the present as the attempt to bind a yet indeterminate future. T...
14 citations
23 Mar 2015
TL;DR: In a companion piece to the introduction of the special issue that examined the state of abolitionist scholarship, the authors discusses some old challenges associated to traditional forms of abolitionism (prison abolitionism and penal abolitionism), but also emerging challenges surrounding abolitionist critiques of the prison industrial complex and the growing use of detention decoupled from criminal law.
Abstract: This paper identifies and critically assesses old and new challenges that, we argue, must be reckoned with if abolitionism qua abolitionism is to be tenable. A companion piece to the introduction of the special issue that examined the state of abolitionist scholarship, this article discusses some old challenges associated to traditional forms of abolitionism (prison abolitionism and penal abolitionism), but also emerging challenges surrounding abolitionist critiques of the prison industrial complex and the growing use of detention decoupled from criminal law. Our discussion is focused on five key themes: the ‘dangerous few’; the carnival of punishment; the problems with community; racism, capitalism and punishment; and legal pluralism.
14 citations
Cites background from "Law as a Social System"
...Still, this would avoid conflating the performance of criminal legal systems with the function of law (see Luhmann, 2004)....
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TL;DR: For instance, half a century of behavioral, practice-oriented research in fields as diverse as politics, economy, law, and science has generated insights that improve our understanding of these fields' workings as mentioned in this paper.
Abstract: Half a century of behavioral, practice-oriented research in fields as diverse as politics, economy, law, and science has generated insights that improve our understanding of these fields’ workings ...
14 citations
Cites background from "Law as a Social System"
...These theories, in which the systems ‘reflect’ upon their identity, seeking answers to the ‘fundamental questions’ about their meaning (Luhmann, 2004 [1993]: 425), are at once aligned with the systems’ reference problems and sufficiently distanced from their day-to-day operations to permit genuine…...
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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
Posted Content•
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