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Journal ArticleDOI

Law as a Social System

01 Jan 2006-Modern Law Review (Blackwell Publishing Ltd)-Vol. 69, Iss: 1, pp 123-129
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.
Abstract: No abstract available.
Citations
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Journal Article
TL;DR: In this article, a linguistic game of prepositions in order to define the following: What is the Environment? What is 'environment' for environmental law? How does the law react to the complexity of its environment?4. How to take into account the ecological crisis within a rather narrow, anthropocentric legal frame?5. How can utopia be considered in its potential realisation?
Abstract: A linguistic game of prepositions in order to define the following:1. What is the Environment? What is 'environment' for environmental law?2. How does the law react to the complexity of its environment?3. How to take into account the ecological crisis within a rather narrow, anthropocentric legal frame?4. How to move away from the hackneyed binarism econcentricity/anthropocentricity and venture a different, de-centred conceptualisation?5. How can utopia be considered in its potential realisation?The paper is a further investigation of the concept of the paradox in the ecological legal crisis.

11 citations

Journal ArticleDOI
TL;DR: In this article, the authors explore the relationship between deliberative democracy, the Internet, and systems theory's thoughts on diversity, and introduce Habermas's theory of deliberative democracies.
Abstract: This article explores the relationship between deliberative democracy, the Internet, and systems theory’s thoughts on diversity. After introducing Habermas’s theory of deliberative democracy and ho...

11 citations


Additional excerpts

  • ...See Luhmann (2004)....

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Posted Content
TL;DR: In this paper, the utility of global legal pluralism in the absence of an accompanying account of power currently being exercised in global legal domains principally, but not exclusively, via state agency is questioned.
Abstract: If it is correct to describe the contemporary global scene as fragmented, with multiple, overlapping legal orders everywhere, legal pluralism seems a most useful heuristic to have at hand. Global legal pluralists typically take up an enthusiastically cosmopolitan/internationalist style that decentres, if not elides, the continuing persistence of states. There is also an accompanying tendency to bracket the ways in which power relations define and then configure legal norms and institutions that regulate economic life at multiple levels. Not only is there a naivete about power that infects the global legal pluralist account, one also loses sight of the partiality and ideological tilt of the contemporary global scene. In this chapter I question the utility of global legal pluralism in the absence of an accompanying account of power currently being exercised in global legal domains principally, but not exclusively, via state agency. As a corrective, I supplement the pluralist account with insights drawn from the critical branch of international political economy (IPE). IPE aims to bring both politics and economics to bear on the study of international politics. The aspiration is to bring law into dialogue with this branch of IPE with a view to better ascertaining the political stakes involved in analyzing the rise of a particular branch of global economic law, namely, international investment law.

10 citations


Cites background from "Law as a Social System"

  • ...Gunther Teubner explores this radically decentred legal order through a systems-theoretic lens, inspired not by McCormick but by Niklas Luhmann (Luhmann 2004; Fischer-Lescano and Teubner 2002). v Teubner’s formulation regarding ‘societal constitutionalism’ (2004) describes the emergence of autonomous legal orders proliferating at the global level that are ‘emerging in relative isolation from politics’ (1997: 6)....

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  • ...Gunther Teubner explores this radically decentred legal order through a systems-theoretic lens, inspired not by McCormick but by Niklas Luhmann (Luhmann 2004; Fischer-Lescano and Teubner 2002). v Teubner’s formulation regarding ‘societal constitutionalism’ (2004) describes the emergence of…...

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Posted Content
TL;DR: The authors argue that the operative closure of law results in a disconnection between income tax law and accountancy, and that a general anti-avoidance rule may repair this disconnection in cases where accountancy records are governed by substance rather than form.
Abstract: Autopoiesis is a post-modern, essentially positivist theory that tries to describe the true nature of law. Its principal tenets are the ideas of self-reproductive growth from reasoning that is self-referential and recursive, relative autonomy from, and “operative closure” against, other social systems, together with “cognitive openness” to “irritation” and to “noise” from outside the closed circle of the law. The authors are skeptical about the ability of autopoiesis theory to illuminate the nature of law in general, but see it as shedding useful light on income tax law, particularly the quality that income tax law shows in inventing legal structures that have no reality beyond the world of fiscal affairs. The authors argue that the general anti-avoidance rule punctures the autonomy and closure of income tax law, to allow the substantive norms of the economic and business system free play, or relatively free play, within tax cases. That is, while income tax law is in general a good example of legal autopoiesis, this observation is incorrect when a general anti-avoidance rule is in play. Two implications for accounting are (a) that the operative closure of law results in a disconnection between income tax law and accountancy, and (b) that a general anti-avoidance rule may repair this disconnection in cases where accountancy records are governed by substance rather than form.

10 citations

Journal ArticleDOI
28 Sep 2007
TL;DR: In this paper, the role of commissions de reforme du droit in the institutionnalisation of a systeme de pensee has been investigated, with the goal of offrir a rationalite penale moderne.
Abstract: Dans cet article, nous nous appuyons sur une etude de cas, le cas du Comite canadien de la reforme penale et correctionnelle (1969), pour penser theoriquement le role des commissions de reforme du droit par rapport aux conditions d’emergence des idees innovatrices en matiere de justice penale. Nos developpements attribuent aux commissions de reforme du droit un role important dans l’institutionnalisation d’un systeme de pensee pouvant offrir une alternative a la rationalite penale moderne.

10 citations


Cites background from "Law as a Social System"

  • ...…revoir ses principes et objets fondamentaux, repenser sa légitimité et instituer un nouvel ordre normatif lequel, en bouclant la boucle, devient disponible pour guider les opérations rudimentaires de l’auto-observation et orienter autrement le développement général du système (Luhmann, 2004, 457)....

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References
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Journal ArticleDOI
Ralf Michaels1
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

Journal ArticleDOI
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

Journal ArticleDOI
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