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: The text which is at the centre of the discussion in this paper was one of the many manuscripts on which Niklas Luhmann worked until 1972 and then abandoned, and it has been published now (2013) posthumously in Germany (in German) as a book in an edited version as mentioned in this paper.
Abstract: The text which is at the centre of the discussion in this paper was one of the many manuscripts on which Niklas Luhmann worked until 1972 and then abandoned. It has been published now (2013) posthumously in Germany (in German) as a book in an edited version. While the reasons as to why Luhmann never published the text remain unclear, studying it now with hindsight reveals Luhmann’s writing as a fundamental book and direct conduit from legal theory to systems theory while circumnavigating sociological theory. With an international audience in mind, this paper will try to introduce this “unfinished” text in a particularly careful way which pays tribute to Niklas Luhmann’s original, perhaps peculiar, language and terminology. At the same time, this paper attempts to preserve the meaning of the original text by suggestions as to how that text could be understood in an English translation. However, the best fit between original and any translation of its meaning is ultimately left to the reader. For that purpose, the paper proceeds in an exegetic manner by quoting the original text at length and providing a suggested translation in English. This mode of comment on Niklas Luhmann’s manuscript does not substitute for a full translation – which may never come – but it could answer the urgent need for connecting an English-reading audience “just in time” with new publications by and on Niklas Luhmann when they come to hand. In this way, the paper can possibly avoid the long hiatus between the original publication in German and information about filtering through internationally in a haphazard way. This urgency applies the more to a text written by Niklas Luhmann which obviously has an important, perhaps even crucial, place in the genetic history of Luhmann’s ideas and in his generative grammar of systems theory.
3 citations
Cites background from "Law as a Social System"
...These were channeled into a slightly higher pick-up rate of a second publication of a translation of a Luhmann book on law (Luhmann 1993, 2004)....
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...So it is correct to say, as Mark Hanna observes, that Luhmann’s later book on law (Luhmann 1993, transl....
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...23 Possibly Luhmann refers here also to his later concept of law as the function system of world society, cf. Luhmann 1993, 2004....
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TL;DR: In this paper, a legal approach to corporate social responsibility (CSR) communication should dissolve the conflicting simultaneity of assessing responsibility for human rights and the environment on an abstract level while avoiding liability in concrete cases.
Abstract: What do parent companies owe to individuals that are directly affected by the business conduct of a foreign subsidiary? In corporate social responsibility (CSR) policies and sustainability reports parent companies of multinational enterprises respond to that question. They emphasize their commitment to address environmental and human rights risks across their global supply chain. The CSR communication of parent companies constitutes multinational enterprises as responsible business organisations. CSR communication targets investors, creditors and consumers of the parent company. In this paper, I direct my attention to actors that had not been intended addressees of parent companies’ CSR communication: to the courts in their home state jurisdictions. Even though the CSR communication was not meant to be understood as legal communication, courts in home states of parent companies have been confronted with CSR communication in domestic transnational human rights litigation against multinational enterprises. I will discuss how employees, consumers and the general public took the CSR communication of parent company seriously and thereupon formulated claims under tort, contract or consumer protection laws. I argue that a legal approach to CSR communication should dissolve the conflicting simultaneity of assessing responsibility for human rights and the environment on an abstract level while avoiding liability in concrete cases.
3 citations
TL;DR: The case salience data are prominent in the US judicial politics literature as mentioned in this paper, but such data are not available for most other courts, such as the European Court of Justice (ECJ).
Abstract: Case salience data are prominent in the US judicial politics literature. By contrast, such data is not available for most other courts. With the continued judicialization of politics in the EU and ...
2 citations
Cites background from "Law as a Social System"
...Often the technicality of the law (Luhmann, 2004), a language that successfully masks (judicial) politics behind a ‘“technical” legal garb’ (Burley & Mattli, 1993, p....
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...Often the technicality of the law (Luhmann, 2004), a language that successfully masks (judicial) politics behind a ‘“technical” legal garb’ (Burley & Mattli, 1993, p. 70), prevents public attention to the CJEU and its output....
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03 Dec 2013
TL;DR: Palavras-chave as discussed by the authors analyzes a Jurisica Juridica pos-moderna transnacionalidade, and conclui que, no âmbito de um Estado Transconstitucional de Direito, a politico juridica chave for a construcao da Sociedade pos- moderna que se deseja.
Abstract: O presente artigo parte da premissa de que, no atual estado de transicao paradigmatica, a transnacionalizacao do Direito e uma necessidade da Politica Juridica. Seu objetivo e analisar como a Jurisdicao Constitucional pode funcionar como instrumento de uma Politica Juridica pos-moderna transnacional. Nesse mister, aborda a transicao paradigmatica da modernidade para a pos-modernidade, a necessidade de transnacionalizacao do Direito, os elementos basilares da Politica Juridica, a vocacao politico-juridica da Jurisdicao Constitucional e o Transconstitucionalismo. Ao final, conclui que a Jurisdicao Constitucional, no âmbito de um Estado Transconstitucional de Direito, e ferramenta politico juridica chave para a construcao da Sociedade pos-moderna que se deseja. Palavras-chave: Politica Juridica. Jurisdicao Constitucional. Transnacionalidade. Transconstitucionalismo.
2 citations
Additional excerpts
...(LUHMANN, 1988/1989, p. 140)....
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TL;DR: In this paper, the authors discuss how corporate social responsibility can facilitate the observation of reflexivity between the legal, political and economic systems of the global society, and how its variability of meaning can facilitate a systemic learning by the Law itself.
Abstract: A presente pesquisa tem como objetivo geral discutir de que modo a responsabilidade social empresarial pode facilitar a observacao da reflexividade entre os sistemas juridico, politico e economico da sociedade global, permitindo um aprendizado sistemico pelo proprio direito. Como hipotese, o trabalho considera que a sociedade funcionalmente diferenciada vem cobrando maior responsabilidade das empresas, principalmente, no que diz respeito a questao ambiental, o que leva ao estabelecimento de novos padroes de conduta, abrindo espaco para a manifestacao de organismos internacionais. Para tanto, este relato foi dividido em tres momentos. No primeiro, o que se buscara e compreender as nocoes basicas de responsabilidade social empresarial, utilizando-se, para isso, dos casos paradigmaticos de Mariana, Bhopal e Chernobyl. No segundo, sera estudada a variabilidade de sentido da responsabilidade social empresarial, observando-a como um conceito que vai alem do mero cumprimento das leis pelas empresas. Finalmente, no ultimo, o interesse do trabalho converge na perspectiva das formas de aprendizado pelo sistema do direito. Como procedimentos metodologicos, emprega-se aqui o metodo sistemico construtivista, de abordagem monografica, e a tecnica de pesquisa bibliografico-documental. CORPORATE SOCIAL RESPONSIBILITY AMONG LAW, ECONOMY AND POLITICS OF GLOBAL SOCIETY: environmental disasters and reflexivity This research has the main objective of researching how corporate social responsibility can facilitate the observation of reflexivity between the legal, political and economic systems of the global society, and how its variability of meaning can facilitate the understanding of the reflexivity between such systems, allowing a systemic learning by the Law itself. To do so, it was divided into three moments: in the first section, what will be sought is to understand the basic notions of corporate social responsibility, using, for this, the paradigmatic cases of Mariana, Bhopal and Chernobyl. In the second section, we will study the variability of meaning in corporate social responsibility, observing it as a concept that goes beyond mere compliance with laws by corporations. Finally, in the last section, the interest of the work converges in the perspective of the ways of learning, by the Law system, of the performance of corporate social responsibility. As a hypothesis, the work considers that the functionally differentiated society has been taking greater responsibility of companies, especially with regard to the environmental issue, which leads to the establishment of new standards of conduct, opening space for the manifestation of international organizations. As methodological procedures, the constructivist systemic method is used here, with a monographic approach and a bibliographicaldocumental technique. Keywords: Environmental disasters. Corporate social responsibility. Reflexivity. RESPONSABILITE SOCIALE D’ENTREPRISE ENTRE LE DROIT, L’ECONOMIE ET LA POLITIQUE DE LA SOCIETE MONDIALE: catastrophes environnementales et reflexivite La presente recherche vise a discuter de la maniere dont la responsabilite sociale des entreprises peut faciliter l’observation de la reflexivite entre les systemes juridique, politique et economique de la societe mondiale, permettant un apprentissage systemique a part entiere. A titre d’hypothese, le document considere que la societe fonctionnellement differenciee a exige une plus grande responsabilite des entreprises, notamment en ce qui concerne la question environnementale, ce qui conduit a l’etablissement de nouvelles normes de conduite, laissant place a la manifestation des organisations internationales. Ce rapport est donc divise en trois etapes. Dans le premier, ce qui sera recherche, c’est de comprendre les notions de base de la responsabilite sociale des entreprises, en utilisant les cas paradigmatiques de Mariana, Bhopal et Tchernobyl. Dans le second, la variabilite du sens de la responsabilite sociale des entreprises sera etudiee, en l’observant comme un concept qui va au-dela de la simple conformite des entreprises aux lois. Enfin, dans ce dernier, l’interet du travail converge dans la perspective des formes d’apprentissage par le systeme juridique. En tant que procedures methodologiques, la methode systemique constructiviste de l’approche monographique et la technique de recherche bibliographique-documentaire sont utilisees ici. Mots-cles: Catastrophes environnementales; Responsabilite sociale des entreprises; Reflexivite.
2 citations
Cites background from "Law as a Social System"
...…sistema cognitivamente (porém, não operativamente. já que, em razão da autopoiese, cada sistema opera apenas com referência a suas próprias estruturas) mais sensível àquilo que provém do entorno, constituído, inclusive, por outros sistemas, tais como economia e política (Luhmann, 2004, p. 381-383)....
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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
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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