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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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
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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01 Jan 2017
TL;DR: Theoretical framework for the policing of Radicalization and its applications in the public sphere and the politics of Terror are explained.
Abstract: ............................................................................................................................. vi List of Tables ..................................................................................................................... ix List of Figures .................................................................................................................... xi Chapter 1: Introduction ....................................................................................................... 1 Chapter 2: Theoretical Framework ..................................................................................... 9 Chapter 3: Methodology ................................................................................................... 24 Chapter 4: The New Politics of Terror ............................................................................. 43 Chapter 5: Seeing Radicalization Through Law ............................................................... 85 Chapter 6: Discourses of Radicalization in the Public Sphere ....................................... 107 Chapter 7: Scientific Discourses and Radicalization ...................................................... 147 Chapter 8: The Policing of Radicalization ...................................................................... 174 Chapter 9: Conclusion ..................................................................................................... 224 References ....................................................................................................................... 235
17 citations
TL;DR: In this paper, the authors argue that the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law.
Abstract: In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
17 citations
Journal Article•
TL;DR: In this paper, a more simplistic conceptualization of autopoiesis is proposed, and guidelines for a new foundation in this area are given. But there are often contradictions in the very essence of the theory which are outlined in this article.
Abstract: Autopoietic theory, a theory of complex, non- linear, autonomous and especially living systems, found its way from biology, through the social sciences to organization theory and information systems. It enjoys major attention from scientific audience in lots of different disciplines. Still there hasn't been enough effort to establish a common foundation for a new theory. There are often contradictions in the very essence of the theory which are outlined in this article. By using a more simplistic conceptualization of autopoiesis, we are trying to give guidelines for a new foundation in this area.
16 citations
TL;DR: In this article, the potential and limits of quantitative approaches to labour law research are explored, and the methods used to construct and validate indicators of labour regulation and those used in the econometric analysis of the effects of labour law rules on employment, productivity and inequality.
Abstract: This article considers the potential and limits of quantitative approaches to labour law research. It explores the methods used to construct and validate indicators of labour regulation (‘leximetrics’) and those used in the econometric analysis of the effects of labour law rules on employment, productivity and inequality. It is argued that while there is a risk of the misuse and misappropriation of legal indicators, they can provide new evidence on the nature and effects of labour law rules, and thereby contribute to labour law theory as well as to the resolution of some practical issues of regulatory policy.
16 citations
TL;DR: In this article, the development and evolution of Derrida's rhetoric of contamination from his increasing deployment of epidemiological tropes (contagion, virology) from the late 1980s to his shift to immunological tropes in a number of his later works in the 1990s and 2000s.
Abstract: Threaded through Derrida’s body of work is a rhetoric of contamination, one that is intimately bound to the question of metaphor—that is, to the question of language and communication in general. In his reading of Antonin Artaud’s The Theatre and its Double in Writing and Difference (1967), Derrida notes that it is ‘metaphor that Artaud wants to destroy’. Metaphor, the manifestation of the schism between words and their referents, and an inescapable reminder of human alienation from the divine, is at the same time a force of contamination. Metaphor is a mark Derrida writes, quoting Artaud, of an ‘infection of the human which contaminates ideas that should have remained divine’. The publication of Dissemination a few years later in 1972 saw Derrida concretising the links between contamination and metaphor. There is, as Derrida points out in Dissemination, a complex feedback loop between metaphor—the ultimate figure of figurality—and contamination: ‘metaphoricity is’, he says, ‘the logic of contamination and the contamination of logic’. In this paper, I map the development and evolution of Derrida’s rhetoric of contamination from his increasing deployment of epidemiological tropes (contagion, virology) from the late 1980s to his shift to immunological tropes in a number of his later works in the 1990s and 2000s. In particular, I read Derrida’s ‘logic of autoimmunity’—a concept that has been considered emblematic of his ‘ethical’ or ‘political’ turn—as an extension of rather than a point of rupture from his rhetorical concerns, and one that is undergirded by the principle of contamination.
16 citations