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 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
Cites background from "Law as a Social System"
...Luhmann (2004) and Teubner (1993, 1996) define law as the discourse characterized by the binary code legal/illegal; for Günther (2008), use of the word law by various groups enables a universal code of legality that in turn defines the very object of intercommunity debate....
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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
Cites background from "Law as a Social System"
...Moreover, if formalization entails integration in political structures and absorption of tradition into law, it is very well possible that the formalization undermines the coordinative function of the original institutions, as various studies have shown (Gallina, 2008; Luhmann, 2008; Sievers, 2002)....
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...Simultaneously, the broken promises of modernism have inspired a cynicism with formal institutions (Lindell, 2010), with the power of laws, policies, and plans to create a better world (e.g., Luhmann, 1990, 2008; Pressman & Wildavsky, 1973; Scott, 1998)....
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...In modern political theory, the rule of law emerged as both a precondition and a result of stable political institutions (Acemoglu & Robinson, 2012; Commons, 1924; Easterly, 2006; Luhmann, 2008)....
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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
References
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TL;DR: In this paper, a general structure for Global Sustainability Terms (GSTs) is proposed, i.e. any standard terms concerned with the sustainability impact of contracting. And the authors discuss the "why", "what" and "how" of this claim.
Abstract: Every (global) contract should include sustainability terms. The following chapter discusses the ‘why’, ‘what’ and ‘how’ of this claim. It outlines a general structure for Global Sustainability Terms (GSTs), i.e. any standard terms concerned with the sustainability impact of contracting. Widely standardized sustainability terms could enable a normative narrative of ‘sustainable contracting’, enhancing fair transactions and sufficient use of resources. Internal contractual standards establish a sustainable private self-governance that could reshape global market realities. To implement the values of sustainability at the heart of a basic market institution like contracts might in the long run even transform our economic thinking.
21 citations
TL;DR: The professional project has long depended on at least state complicity, if not state sponsorship, to protect monopolies over key areas of professional work as discussed by the authors, and professional restrictive practices have increasingly been treated by the state itself as a constraint on the market.
Abstract: Professional occupations have long fought over what Abbot (1988) calls ‘jurisdiction’—the control over contested areas of work and specialisation. These ‘turf wars’ are both interand intra-professional in nature. They have encompassed, for example, the struggles between lawyers and accountants to control the insolvency market (Dezalay, 1991; Dezalay & Sugarman, 1995); between (primarily) English and US law firms to dominate ‘elite’ and global corporate practice (Flood, 1996, 2001); and solicitors’ attempts to obtain higher court advocacy rights in the face of the Bar’s monopoly (Boon & Flood, 1999; Kerridge & Davis, 1999). Particularly in the period since the late 1970s, the state, not least in its role as a monopsonistic purchaser of legal services, has also (apparently) become increasingly a driving force in influencing and shaping these jurisdictional conflicts. The professional project has long depended on at least state complicity, if not state sponsorship, to protect monopolies over key areas of professional work. In the discourse that has dominated Thatcherite and post-Thatcherite Britain, not only has this political alliance largely collapsed, professional restrictive practices have increasingly been treated by the state itself as a constraint on the market. Competition has become the catchword, increasingly interweaving itself into discourses not just about professional turf, but about the scope and purposes of professional regulation (OFT, 2001; Clementi Review, 2004) and the access to justice debate (Parker, 1999). The development of this complex, uncertain and shifting relationship between the legal professions, the state and the market has been a substantial theme of the sociology of the legal profession since the early 1980s (see, e.g. Larson, 1977; Abel, 1988b; Halliday, 1987; Paterson, 1996; Hanlon, 1999). Throughout this period Rick Abel has played a very significant part in the debate (see Abel, 1979, 1986, 1988a, 1988b, 1989, 1995, 1999). His latest monumental study, English INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 11, NO. 1 & 2, MARCH & JULY 2004
21 citations
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TL;DR: The Euro is not just money with a political second mission but rather can be understood as an indicator of the relative relevance that specific function systems do or do not have for the European societies and the European society as mentioned in this paper.
Abstract: The present analysis of the Euro looks for the marks that function systems make on what we commonly take for the European money. Clearly distinguishing between coins and currency, the Euro coins and banknotes are not taken for economic tokens per se but for storage devices that contain both economic and noneconomic information. A systemic analysis of the function system references on these storage devices shows that the economy has left fewer marks on the Euro than politics, art, and the mass media systems have. We, hence, argue that “the Euro” “is” not just money with a political second mission but rather can be understood as an indicator of the relative relevance that specific function systems do or do not have for the European societies and the European society.
21 citations
01 Jan 2016
TL;DR: In this article, a case is made for a macrosociology that conceptualizes institutional spheres as the structural and cultural milieus in which all lower levels of social reality, like individual, collective, and clusters of collective actors, are embedded.
Abstract: The study of institutions is central to the study of sociology. In this essay, a case is made for a macrosociology that conceptualizes institutional spheres as the structural and cultural milieus in which all lower levels of social reality, like individual, collective, and clusters of collective actors, are embedded. Spheres like religion or law vary in terms of their degree of physical, temporal, and social differentiation vis-a-vis all other institutional spheres, as well as, the degree to which they are symbolically distinct and, therefore, autonomous spheres of social reality and action. When viewed through an evolutionary and ecological perspective, institutional spheres lose the static nature found in functionalist accounts. Instead a recursive link between actors and environment is posited, highlighting the role the macro-level plays in shaping our everyday lives and social reality.
20 citations
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TL;DR: Li et al. as discussed by the authors provided a scholarly analysis of the Li Zhuang case in 2009-2011, in which the fate of an individual criminal defense lawyer was linked with the main ideological conflict in China's legal system and the highest-level political struggles in the Chinese state.
Abstract: The Chinese judicial system has long been influenced by a populist legal ideology that prioritizes public accountability and political legitimacy over professional autonomy. In recent years, however, the Chinese legal profession has begun to mobilize collectively, albeit episodically, to challenge this populism. Drawing on legal documents, interviews, media reports, and online discussions, this article provides a scholarly analysis of the Li Zhuang case in 2009-2011, in which the fate of an individual criminal defense lawyer was linked with the main ideological conflict in China’s legal system and the highest-level political struggles in the Chinese state. It demonstrates that, although populism remains an intimidating force in China’s judicial practice, lawyers, scholars, and other legal professionals may be laying a foundation for collective solidarity to pursue professionalism through their mobilization against populism.
20 citations