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, the authors argue that Niklas Luhmann's social systems theory is very useful in understanding the value and difficulty of trespassing boundaries in heritage planning, and understand the value of conflict and cultivated difference in the planning process.
Abstract: Heritage planning, as an integrated approach to dealing with traces of the past in the ongoing organisation of the landscape, must be a trans-disciplinary endeavour. Bridging differences between scientific disciplines, as well as sciences and the law, administration, politics and economy, is a continuous challenge. We argue that Niklas Luhmann’s social systems theory, with its sophisticated understanding of society as an evolving population of social systems, is very useful in understanding the value and difficulty of trespassing boundaries in heritage planning, and in understanding the value of conflict and cultivated difference in the planning process. We reflect on the mechanisms of self-reference and self-reproduction that are at play within the scientific disciplines addressing ‘heritage’, and analyse similar mechanisms within planning administrations. These mechanisms are not in essence negative; they are necessary for the production of the kind of knowledge that is specific for the system or organi...
22 citations
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TL;DR: In this paper, the authors take up systems theory as a heuristic for assessing the regime's responsiveness to outside influences and examine the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation.
Abstract: There are at least two views within investment arbitration about how to respond to legitimation problems associated with inconsistent rulings, latitudinal interpretations, and arbitral bias and conflicts of interest. Some prefer to keep the regime on course and not respond to these outside perturbations. Others prefer to take into account external influences, such as human rights and environmental commitments, in the course of investment treaty interpretation. Both understand that, whatever the response, these questions will be determined by lawyers, scholars, and arbitrators operating within the system of international investment law and not by actors operating outside of it. Both views, in other words, are congenial to systems-theoretic accounts. As articulated by Teubner, there is a proliferation of functional legal sub-systems, developing autonomously of states, each of which, in the course of maximizing internal rationality, potentially is on a collision course with other operative sub-systems. These can only be forestalled if sub-systems act reflexively by devising strategies of self-limitation that selectively internalize objections emanating from external spheres. As this maps on to self-understandings of actors operating within investment arbitration, this paper takes up systems theory as a heuristic for assessing the regime’s responsiveness to outside influences. In order to take stock of the degree of reflexivity, the paper examines the direction investment law is taking in a few key areas: first, in the shift in emphasis away from expropriations (the ‘takings rule’) to the fair and equitable treatment standard, which is performing similar functions; second, in the attempt to merge global standards by embracing World Trade Organization Appellate Body decision making; and third, the hesitant embrace of proportionality doctrine as a means of weighing public interests into the equation. These moments of reflexivity turn out to be modest in reach and so unlikely to calm objections emanating from states and social movements. What likely will be necessary is intervention into and steering by states of the regime, an intervention that is anathematic to Teubner’s system-theoretic account.
22 citations
01 Jan 2014
TL;DR: In this article, the authors propose a solution to solve the problem of homonymity in homonym identification, i.e., homonym-based homonymization of homonyms.
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22 citations
11 May 2016
TL;DR: Amirell et al. as mentioned in this paper discuss how the progress made in the sciences, which offer unique access to new types of source material, can best be used by the historians of global processes.
Abstract: ISSN: 2002-2131 Kriterium (Online) Interest in world history has never been greater—both among historians and the reading public. Globalization has coaxed historians out of their fixation on all things national, which has characterized historical research since the nineteenth century. But with this new global field of research has come new methodological problems. It is high time that these problems were tackled, if only to develop methods to ensure that world-historical research strives for the same high quality and standards as any other field of historical study. This book addresses all these problems in detail, with a particular emphasis on solutions. The contributors discuss how the progress made in the sciences, which offer unique access to new types of source material, can best be used by the historians of global processes. These are sources that demand an awareness of both their advantages and their drawbacks. The same is true of the secondary sources, which are the basis of most world-historical overviews and syntheses. Primary and secondary sources alike require shrewd handling in a way not seen before. Similarly, the calculations and comparisons essential to world history must be harmonized, and historians have to acknowledge that the information they are working from is often of variable quality and detail. Linguistic and cultural differences must also be analysed systematically whenever historians seek the recurring traits in human history, much as they must be alert to the strong ideological interests that all too often distort scholarly results. Solutions to these and the other methodological problems are hammered out in this book. Whether researchers, students, or interested readers, anyone keen to sharpen their critical thinking about world history will find there is much to take away from this book. Academic co-ordinator is Stefan Eklof Amirell, Associate Professor, History, Linnaeus University: https://orcid.org/0000-0002-1782-1572
22 citations
TL;DR: The focus on the practice of remembering has been highly productive for memory studies, but it creates difficulties in understanding personal commitment to particular versions of the past as mentioned in this paper, which is difficult to understand.
Abstract: The focus on the practice of remembering has been highly productive for memory studies, but it creates difficulties in understanding personal commitment to particular versions of the past. Autobiog...
21 citations