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: In this article, the authors explore the mechanisms that led to the current crisis of copyright law in the digital era by applying the concept of law as an auto-poietic system.
Abstract: The paper explores the mechanisms that led to the current crisis of copyright law in the digital era by applying the concept of law as an auto-poietic system. It analyses how copyright law has evolved over the years, and how -- every time a new technology has come to disrupt the system -- the law has evolved to try and preserve the traditional status quo. Today, however, in order to benefit from the new opportunities offered by digital technologies, copyright law must be radically reformed to encourage -- rather than discourage -- the dissemination of online works. This might require a shift from a system based on the concept of reproduction (copy-right) to a system based on the re-utilization of works (reuse-right).
5 citations
Cites background or methods from "Law as a Social System"
...It analyses how copyright law has evolved over the years, and how - every time a new technology has come to disrupt the system - the law has evolved to try and preserve the traditional status quo....
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...…of copyright law in the digital era by applying the concept of law as an autopoietic system - as developed by Niklas Luhmann and Gunther Teubner (Luhmann, 2008; Teubner, 1988) - whereby the legal system is regarded as an autonomous, selfreferential normative system that remains separate from…...
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...The paper explores the mechanisms that led to the current crisis of copyright law in the digital era by applying the concept of law as an autopoietic system - as developed by Niklas Luhmann and Gunther Teubner (Luhmann, 2008; Teubner, 1988) - whereby the legal system is regarded as an autonomous, selfreferential normative system that remains separate from other normative systems (such as religion, morality, or social norms), independently setting its own boundaries through a binary process that distinguishes what is legal from what is unlegal....
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TL;DR: A growing body of literature in organization studies draws on the assumption that communication constitutes organization, often abbreviated to CCO, and as mentioned in this paper introduce Luhmann's theory of social systems as one explicit strain of CCO thinking.
Abstract: A growing body of literature in organization studies draws on the assumption that communication constitutes organization, often abbreviated to CCO. In this paper, we introduce Luhmann’s theory of social systems as one explicit strain of CCO thinking. We particularly argue that Luhmann’s perspective lends itself to contributing to current conceptual debates on how communication constitutes organization. The theory of social systems highlights that organizations are fundamentally grounded in paradox, as they are built on communicative events that are contingent by nature. Consequently, organizations are driven by the continuous need to deparadoxify their inherent contingency. At this, Luhmann’s approach fruitfully combines a processual, communicative conceptualization of organization with the notion of boundary and self-referentiality. Notwithstanding these potential contributions, the transferability of insights is limited by the hermetic terminology the theory of social systems employs, and the fact that it neglects the role of material agency in the communicative construction of organization.
5 citations
Cites background from "Law as a Social System"
...In other words, Luhmann theorizes a clear distinction between communication (“social systems”) and individual human beings (“psychic systems”): “Accordingly, social systems are not comprised of persons and actions but of communications” (Luhmann, 1989, p. 145)....
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TL;DR: The authors examine the ritualistic aspects of state killing as practised in the US today, with a view to deepening our understanding of the punishment's popular appeal in American law-and-order politics.
Abstract: Canada officially abolished capital punishment in 1976. For the last few years, however, our federal government has been adopting increasingly harsher penal policies that resemble American law-and-order politics. As punishments increase in severity, there is pressure to add harsher penalties at the ‘top’ of the scale, that is, for heinous killing. Members of the federal government are almost exclusively pro-death penalty, so it seems the possibility for reinstatement is real. If the death penalty were proposed it would very likely follow on the heels of a shocking crime, and the discourse surrounding the debate will be one that exploits the emotionality of crime and punishment. In this vein, state killing will present not as a rational response to rule violation but as a necessary ritual to combat a metaphysical form of evil. The purpose of this paper is to examine the ritualistic aspects of state killing as practised in the US today, with a view to deepening our understanding of the punishment’s popular ...
4 citations
Cites background from "Law as a Social System"
...It is easy to see how the DP, as part of law’s ‘symbolic apparatus’ (Luhmann, 2004, p. 150), connects with and feeds a conservative political agenda: it speaks in direct opposition to rehabilitation, or more generally, against the maintenance of a welfare state in which government is partly…...
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...It stabilises our ‘normative expectations by regulating how they are generalized in relation to their temporal, factual, and social dimensions’ (Luhmann, 2004, p. 148)....
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...Specifically, the threat of sanction is a part of law’s ‘symbolic apparatus’ that allows individuals to gear their behaviour to particular norms, and enforcement can be seen as a ‘precondition for the stable projection of norms’ (Luhmann, 2004, pp. 150–151)....
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Journal Article•
TL;DR: A prova de DNA vem conquistando um papel privilegiado na investigacao criminal como forma de identificacao as discussed by the authors, a prova of DNA pode proporcionar um grau de fiabilidade e certeza acima de outros metodos de identifyacao forense.
Abstract: A prova de DNA vem conquistando um papel privilegiado na investigacao criminal como forma de identificacao. Assente numa solida base cientifica e na expressao probabilistica de resultados, a prova de DNA pode proporcionar um grau de fiabilidade e certeza acima de outros metodos de identificacao forense. Porem, a exaltacao de um imaginario mediatico do DNA como a derradeira prova para condenar os verdadeiros culpados e ilibar os inocentes e passivel de limitar a necessaria prudencia no uso destas tecnologias na investigacao criminal, assumindo particulares desafios no processo inquisitorial. Recorrendo aos arquivos judiciais de casos criminais que ocorreram em Portugal e onde foram usadas tecnologias de DNA, sao exploradas varias dimensoes e desafios em torno da prova de DNA durante o inquerito criminal, o seu impacto na construcao e desenvolvimento da narrativa criminal, e a sua preponderância na tomada de decisao judicial.
4 citations
Additional excerpts
...…na medida em que a orientação e validação mútua por princípios de imparcialidade, neutralidade e universalidade contribuem para a construção de um edifício jurídico-pericial pouco suscetível a influências externas que não possam ser integradas no “código” do sistema judicial (LUHMANN, 2004)....
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TL;DR: Palavras-chave as discussed by the authors offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought, showing that legal thought is the continuation of a jurisprudential settlement that occurred in the twenty-first century.
Abstract: DOI: 10.12957/dep.2017.28771 Resumo Este artigo oferece uma interpretacao das origens intelectuais e politicas do direito moderno fincadas no seculo dezenove, bem como de suas consequencias para o pensamento juridico contemporâneo. Estudos socio-teoreticos do direito e do pensamento juridico tendem a enfatizar ruptura e mudanca. Historias do pensamento juridico tendem a oferecer uma imagem de combate entre as diferentes escolas de teoria do direito. Tais estudos e historias falham em dar conta do quanto o pensamento juridico do presente e uma continuacao de um pacto teorico-juridico lavrado no seculo dezenove. Um pacto que domou a vontade das massas atraves da influencia de um pensamento juridico de autoridade e prestigio, de concepcoes morais do politico e de uma ideia generalizada de evolucao social. O principal mecanismo do pacto teorico foi uma alianca entre racionalismo e historicismo juridicos, ao qual aderiu a vontade das massas. Apos um periodo de polarizacao ao redor da epoca das revolucoes americana e francesa, no seculo dezenove o racionalismo juridico passou a ver eventos historicos como produto da sabia e habilidosa operacao da razao no mundo, e o historicismo juridico passou a socorrer-se das operacoes racionalizadoras da ciencia juridica para dotar o material historico tanto de estabilidade conceitual quanto de autoridade intelectual. A vontade popular aceitou ambas as operacoes. O direito moderno e as principais escolas do pensamento juridico permaneceram, desse entao, aprisionadas a esta convergencia entre razao e historia em face da vontade popular. O direito moderno e portanto tanto marcado por continuidades quanto o e por rupturas; tanto por unidade quanto o e por querelas. Palavras-chave: direito moderno; direito como imaginacao moral; racionalismo juridico; historicismo juridico; vontade popular e direito; A Grande Alianca; The Great Alliance. Abstract This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of political morality, and a general sense of social evolution. The principal mechanism of the settlement was a compact between legal rationalism and historicism to which popular will acceded. After a period of polarization around the time of the American and French revolutions, nineteenth century legal rationalism came to see historical events as the outcome of the cunning operation of reason in the world, and legal historicism came to appeal to the rationalizations of legal reason in order to endow historical matter with both conceptual stability and intellectual authority. Popular will bought into both. Modern law and the main schools of legal thought have remained, ever since, bound to this convergence of reason and history in the face of will. Modern law is therefore as much about continuity as it is about rupture; as much about unity as it is about strife. Keywords: modern Law; law as moral imagination; legal rationalism; legal historicism; popular will and law; The Great Alliance.
4 citations
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