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
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TL;DR: In this paper, the authors propose to conceptualise constitutional courts as self-referentially operating, autopoietic systems, which are capable of generating sufficient cognitive complexity in order to regulate themselves.
Abstract: The chapter proposes to conceptualise constitutional courts as self-referentially operating, autopoietic systems. In a social systems theory perspective constitutional courts are autopoietic organisations which are capable of generating sufficient cognitive complexity in order to regulate themselves. This is demonstrated first in relation to three aspects of constitutional courts: autonomy in docket control, recursive decision-making and the development of consequentialist legal doctrine that makes reflexive use of information on its impact. In the final section the chapter assesses the role of autopoietic constitutional courts operating in the zone of structural coupling between the legal and the political system.
6 citations
TL;DR: In this paper, the authors argue that evolutionary models can explain certain features of common law reasoning, in particular the way that the doctrine of precedent operates to combine stability with change, and that many inefficient rules will persist and survive even in the face of selective pressures.
Abstract: Building on systems theory and the economics of law, this paper argues that evolutionary models can explain certain features of common law reasoning, in particular the way that the doctrine of precedent operates to combine stability with change. The common law can be modeled as an adaptive system which coevolves with its environment, which in this context consists of the political and economic systems of a given society. The common law responds to signals from the economy and from politics (‘cognitive openness’), while retaining its distinct mode of operation (‘operative closure’). A version of the variation, selection, retention algorithm operates at the level of legal decision-making. Theories of legal evolution which stress selection and variation at the expense of inheritance describe only part of the process of legal change and are prone to teleological accounts of evolution to efficiency. Focusing on inheritance or retention helps us to see that the common law can only be qualifiedly adaptive, at best, and that many inefficient rules will persist and survive even in the face of selective pressures. The relevance of this approach is illustrated by an examination of the leading decision in the English (and Scottish) law of tort (or delict), Donoghue v. Stevenson, and its implications for some influential accounts of legal evolution, including legal origin theory, are explored.
6 citations
01 Jan 2019
TL;DR: In this article, a series of articles devoted to the relations among three important 6 concepts co-shaping the contemporary global world: human rights, sustainability and corporate social responsibility is presented.
Abstract: This paper is part of a series of articles devoted to the relations among three important 6 concepts co-shaping the contemporary global world: human rights, sustainability and corporate 7 social responsibility. It discusses some processes that led to the rise of the idea of human rights 8 and points out some theoretical problems this concept generates. 9
6 citations
10 Oct 2020
TL;DR: In this article, the authors merupakan tesis tentangkriminologi budaya yang bermanfaat bagi pengendalian kejahatan and perwujudankesejahteraan sosial bagi masyarakat Indonesia.
Abstract: Suatu ilmu pengetahuan harus memberi manfaat tempat ilmu pengetahuan tersebut digali.Dalam konteks ini, kriminologi yang dipelajari dari masyarakat Indonesia harusmemberikan manfaat terhadap masyarakat Indonesia. Artikel ini merupakan tesis tentangkriminologi budaya yang bermanfaat bagi pengendalian kejahatan dan perwujudankesejahteraan sosial bagi masyarakat Indonesia. Kriminologi budaya Indonesiamelandaskan diri pada konsep structural coupling, yaitu struktur penyesuaian diri atauadaptasi dan toleransi antar etnis dan golongan di Indonesia. Sementara kesejahteraansosial adalah tujuan yang harus diwujudkan dalam setiap program pembangunan.
6 citations
04 Apr 2018
TL;DR: In this article, the authors assume that criticism originating in the Marxist school of thought continue to be relevant also in this present time; though it may need to be further developed and improved by integrating newer critical approaches into the classic Marxist discourse.
Abstract: Marxist criticism is most discernible; despite the oft-repeated claim that it is now irrelevant, belonging to an age now past. This essay assumes that criticism originating in the Marxist school of thought continue to be relevant also in this present time; though it may need to be further developed and improved by integrating newer critical approaches into the classic Marxist discourse. This essay therefore integrates basic Marxist ideas with key concepts from ‘social systems theory’; especially the theory of the German sociologist Niklas Luhmann's. In this light, capitalism is conceptualized here as a ‘super (social) system’: a meaning-creating social entity, in which social actors, behaviors and structures are realized. This theoretical concept and terminology emphasizes the social construction of control and stability, when discussing the operational logic of capitalism.
5 citations