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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01 Jan 2010
TL;DR: The Frankfurt School of Critical Systems Theory and Critical Theory share the following basic assumptions, namely a view of societal-systemic institutional concepts that transcend simple reciprocal relations by dint of their complexity, the assumption that society is based on fundamental paradoxes, antagonisms, and antinomies, a strategy seeking to conceptualize justice as a contingent and transcendental formula, the immanent rather than morality based external critique as an attitude of transcendence, and the aim of societal emancipation in an “association of free individuals” (Marx) as discussed by the authors.
Abstract: Besides its skepticism regarding universal rationality and morality, the Frankfurt School of Critical Systems Theory and Critical Theory share the following basic assumptions, namely a view of societal-systemic institutional concepts that transcend simple reciprocal relations by dint of their complexity, the assumption that society is based on fundamental paradoxes, antagonisms, and antinomies, a strategy seeking to conceptualize justice as a contingent and transcendental formula, the immanent rather than morality based external critique as an attitude of transcendence, and the aim of societal (not only political) emancipation in an “association of free individuals” (Marx). The paper conceptualizes a critical turnaround in autopoietic theory.
9 citations
Dissertation•
01 Jan 2020
9 citations
Cites background from "Law as a Social System"
...The ways in which this network works to produce evidence and credibility suggest that it has self-referential or autopoetic (Luhmann, 1988) characteristics because it is mostly concerned with its own internal workings rather than factors outside it....
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TL;DR: In this paper, the authors examine the concept of vulnerability as it relates to the materiality of systems, the exclusion of human physical corporeality, and social exclusion in Luhmann's theory of social autopoiesis, with a view to understanding how, if at all, the dangers posed by this exclusion are mitigated by autopoietic processes.
Abstract: In this paper we examine the concept of vulnerability as it relates to the materiality of systems, the exclusion of human physical corporeality, and social exclusion in Luhmann’s theory of social autopoiesis. We ask whether a concept of vulnerability can be included in autopoiesis in order to better conceptualise social exclusion and the excluded, with a view to understanding how, if at all, the dangers posed by this exclusion are mitigated by autopoietic processes. We are emphatically not returning to the human subject over operational systems, but seek instead to develop an understanding of the embodied nature of humans and their vulnerability within an autopoietic framework. We argue that the awareness of the risks to social functional differentiation posed by unmanaged exclusion – disenchantment, disassociation, and, most drastically, dedifferentiation – provided by our analysis indicates why hyper-exclusion must be mitigated.
8 citations
TL;DR: In this paper, the authors propose to read Niklas Luhmann's sociological theory of law from the perspective of what may be called the negative dialectics of law: namely, the irreconcilable tension between law a...
Abstract: This article proposes to read Niklas Luhmann’s sociological theory of law from the perspective of what may be called the negative dialectics of law: namely, the irreconcilable tension between law a...
8 citations
Cites background or methods from "Law as a Social System"
...For legal concepts actually help to ‘store’ and ‘make available’ distinctions in processes of argumentation and situations of decision-making (Luhmann, 2004: 340– 343)....
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...To put it in his own words: ‘The foundation of law is not an idea that functions as a principle, rather its foundation is a paradox’ (Luhmann, 2004: 227)....
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...…the methodological emphasis on legal theory’s descriptions of the legal system, Luhmann seeks to move away from the customary idea that the validity of legal concepts is determined by the ‘contexts’ in which they are used or by ‘principles’ that secure uncontested unity (Luhmann, 2004: 341)....
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...(Luhmann, 2004: 146) The production of these specific ‘stabilities’ and ‘sensibilities’ in relation to expectations is, to my mind, a defining attribute and achievement of juridical concepts....
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...…that aim at covering up the contingency of the legal system’s foundations, which can be abstractly identified but not actually ‘found’ (Luhmann, 2004: 262); and also on the generation of alternative attempts of self-description that revalue law and expand normative imagination in…...
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Posted Content•
TL;DR: In this article, the authors examine the concept of transnational law and the way market forces affect the notion of community at the transnational level, including the expansion of the anti-money laundering legislation and the measures enacted following the economic crisis.
Abstract: The paper aims to examine the concept of transnational law and the way market forces affect the notion of community at the transnational level. Can the principle of ultima ratio operate in this context and how should this occur? Recent events, including the expansion of the anti-money laundering legislation and the measures enacted following the economic crisis, will be used as emblematic cases illustrating the development of transnational law and its impact on society. The analysis will also focus on a general discussion on whether the market can be considered an integral part of a transnational community and the extent to which principles and ideas generated in criminal law can contribute to a community-oriented approach. Este articulo pretende examinar el concepto de derecho transnacional y la forma en las fuerzas del mercado influyen en la nocion de comunidad en el ambito transnacional. ?Puede el principio de ultima ratio operar en este contexto y como deberia ocurrir? Los ultimos acontecimientos, incluida la ampliacion de la legislacion contra el blanqueo de dinero y las medidas adoptadas a raiz de la crisis economica, se utilizaran como casos emblematicos que ilustran el desarrollo del derecho transnacional y su impacto en la sociedad. El analisis se centrara tambien en un analisis general sobre si el mercado puede ser considerado como parte integrante de una comunidad transnacional y en que medida los principios e ideas generadas en el derecho penal pueden contribuir a un enfoque orientado a la comunidad.
8 citations
Additional excerpts
...See e.g. Luhmann (1989)....
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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