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
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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TL;DR: In this paper, the authors investigate the evolution of environmental governance in the Romanian Danube Delta, and, starting from an observation of problematic citizen participation, demonstrate how specific patterns of path and interdependence shaped both the present situation and the reform options.
Abstract: In this paper, we revisit the utility of the concepts of path dependence and interdependence for the analysis of participatory environmental governance. We investigate the evolution of environmental governance in the Romanian Danube Delta, and, starting from an observation of problematic citizen participation, demonstrate how specific patterns of path and interdependence shaped both the present situation and the reform options. For the Delta, it is argued that direct citizen participation, without working with other institutions, would not solve the problems observed, but would rather reinforce unwanted informal institutions. Theoretically, we utilise a combination of path dependence theory and social systems theory, allowing a grasp of both rigidity and flexibility in the evolution of governance systems. Empirically, expert and lay interviews, long-term observation and analysis of policy documents underpin our analysis.
62 citations
TL;DR: The article presents a list of 10 function systems and their corresponding media, codes, and programs and suggests that a disciplined approach to functional differentiation opens up a horizon for interfunctional comparative social research.
Abstract: There is no description of modernity without functional differentiation. The distinction of function systems such as economy, science, art, or religion, is a key to modernity. Modern science, however, applies and implies rather than studies functional differentiation without providing exact definitions of function systems or investigating how many of these systems actually exist. The present article addresses these two issues focusing on the second. Test criteria for the distinction between function systems and systems other than function systems are developed and used to decide whether family, love, morality, culture, social work, and some more, actually are function systems. Subsequently, the article presents a list of 10 function systems and their corresponding media, codes, and programs. A final section suggests that a disciplined approach to functional differentiation opens up a horizon for interfunctional comparative social research.
62 citations
TL;DR: In this paper, the authors develop a notion of the "politics of time" in order to analyse the effects that imaginations of future emergencies have in the fields of law and economy and demonstrate that the apprehension of the future in terms of sudden, unpredictable and potentially catastrophic events reinforces current modes of producing financial futurity, while it undermines the procedural rhythm and retroactive sentencing of liberal law.
Abstract: This article develops a notion of the ‘politics of time’ in order to analyse the effects that imaginations of future emergencies have in the fields of law and economy. Building on Niklas Luhmann’s theory of social time, it focuses on the multiplex temporalities in contemporary society, which are shown to interact differently with the ‘emergency imaginary’. We demonstrate that the apprehension of the future in terms of sudden, unpredictable and potentially catastrophic events reinforces current modes of producing financial futurity, while it undermines the procedural rhythm and retroactive sentencing of liberal law. As a whole, the article supplements the analysis of the ‘politics of truth’ prevalent in the current debate about precaution and pre-emption with a theoretical perspective on social temporality.
62 citations
TL;DR: In this article, the authors propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law.
Abstract: . It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as “Law and Social Norms” have much less difficulty in analysing the newly arising forms of private and hybrid “governance without government” from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to “law's own rationality.” We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for “legalisation” and “constitutionalisation.” As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria, and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.
59 citations
Book•
10 Feb 2014
56 citations