ARENA Working Papers
WP 00/14


Changing forms of governance and the role of law

- society and its law

Inger Johanne Sand


I. Introduction : Society and its law

II. Changes in the social structure: - Challenging the forms and the functions of law

III. Theories of the evolution of law and the legitimacy and the relations of law and politics

IV. Politico-legal theories: Habermas and Luhmann

V. Socio-legal theories: Luhmann and Teubner

VI.Reflexivity, uncertainty and the changing argumentative rationality of law





This essay serves a dual purpose. It is first a discussion of the challenges posed to law partly by its increasing dependence on specialised knowledgebased discourses and technologies and partly by the changes in governance and legislation due to the new formations of multi-level governance. Secondly it is a presentation of the politico-legal and socio-legaltheories of J�rgen Habermas, Niklas Luhmann, Gunther Teubner and also to some extent Michel Foucault � which are all being used in the understanding of these challenges to law. The emphasis here will be on the contributions of Habermas and Luhmann to politico-legal theories concerning the understanding of the new forms of governance and of Luhmann and Teubner to socio-legal theory concerning the understanding of the increasing dependence in law on knowledgebased discourses.


Society and its law: - changing conditions of law and politics in society

Law has been a very essential part of the evolution, the enabling and the structuring of the democratic nation states as well as of international organizations and their interaction for the last two hundred years. Both law and politics have been based on the democratic processes of legislation and the system of individual rights of freedom � in their processes and for their legitimacy. Politics, economics, science, law and also other communicative systems have over time evolved into general communicative systems, and their interaction and mutual dynamics have become essential elements in the shaping of modern society. They have contributed to processes of increasing social differentiation and autonomization and at the same time to forms of integration. Legal forms of regulation are permeating society and have become intrinsic parts of both the political instrumental and the more social spheres, of public as well as private forms of governance. Democratic governance, public administration, contract regulations, corporations, family structures, the rights of the individuals etc. are all to a large extent legally constructed and constituted. Within these institutions there will however be an interplay between law and other communicative functions. [1] Law and politics have as parts of the generalized media of communication performed particularly vital functions of social integration. In their dual capacities of representing legitimacy and of communicating across social borders they have carried essential elements of the social risk of the processes of differentiation. Law and politics have in their traditional liberal versions been strictly separated as two different functions and codes, but also fully interdependent on each other and on their very separation.

����������� Law and politics have been dynamic, communicative and structuring elements in society while also conditioned and stabilized by several other structures. Examples of that may be: - the nation-state as a limited entity, and - the relative forms of partial consensus, common social, historical and cultural references as well as common reality representations often connected to the nation-states. Social change has thus normally been transformed, conditioned and stabilized through these structures and to some extent adapted to more or less local conditions. The structures of the nation-state and of how we create our knowledge and reality representations have however for some time been in the process of significant change - in the direction of gradual dissolution of previous institutionalized boundaries, increased combinations, coordinations and competition between various institutional levels, by more global processes and more pluralistic forms of knowledge and patterns of interpretation. These changes have also contributed to changing relations between law and politics. Two such main types of changes shall be mentioned.

First: Most areas of society are becoming increasingly dependent on knowledge- and technologyoriented discourses. These tendencies are also influencing the systems of law and politics, challenging their relative forms of autonomy and thus destabilizing their own processes. Delegations to expert bodies have become vital parts of the administrative, legal and political processes. Knowledge is increasingly taking the form of pluralistic and competing discourses, depending on the points of observation and participation of the actors involved leading to an increasing reflexivity. [2] They are thus characterized by continuous, rapid and unstable processes of change and also of an increasing globalization. Law and politics must also deal with selections of different regimes of knowledge and expertise. The application of highly specialized technologies will tend to lead to high degrees of uncertainty and unintended side-effects also influencing the rationality of legal and political decisions. [3] Economic and knowledgeoriented processes are also increasingly in their own right becoming forms of governance that challenges law and politics in more intensive and dominating forms than previously: This opens up for new forms and new combinations of the various systems of communication. [4]

Secondly: The legal, political, economic and cultural borders of the nation states, and thus the relative forms of stability or homogeneity within these borders, have become destabilized by the growth of inter-, supra- and transnational forms of organisation, cooperation, networks, communication etc. Many forms of legal, political and socio-economic processes are now occurring on several of these institutional levels at the same time. They are often interdependent, but in various forms: - combinations and coordinations as well as competition. These are often without clear or hierarchical relations resulting in more unstable and blurred boundaries. [5] Law and politics are increasingly creating more comprehensive and binding forms of organisation across national boundaries on the inter-, supra- and transnational levels thus contributing to more relatively stable, but also changing and unstable organisations and processes on these levels. There is also an increasing number of inter- and transnational organisations, both governmental and NGO�s as well as transnational companies. Legal organisation and processes on the international and regional levels are also patterned in many different ways.

The multi-level structure of governance necessitates communication between the organisational levels which again contributes to new forms of interdependency between law and politics. Legal and political actors will increasingly have to rely on and interprete each other. Law, in some areas, becomes politicised, and politics becomes juridified. It has also been argued that the processes of globalisation have increased the significance and the autonomy of international private law, Lex Mercatoria. [6] ��

The two mentioned forms of change are also contributing to the fact that decisionmaking both in law and politics will tend to take place in more heterogeneous, pluralistic and changing environments than previously. There are thus less consensual and common frames of references to rely on concerning the norms and the discursive properties of the areas to be regulated on.There will thus be more fluid and varied boundaries between national and international processes and between legal, political, scientific and economic languages in the substantial debates.

The democratic processes of politics and the autonomy of law are thus becoming increasingly destabilized and challenged by both the processes of internationalisation and by economic and other knowledgebased forms of communication with consequences for the functions of law and politics as well as for their relations and boundaries with other communicative systems.

The argumentation in the following chapters may be be read as too sharp and conflict-oriented in its form. The intention here is however not to postulate any crisis in law, but rather to describe an evolution of law and some inherent problems and contradictions in this evolution as distinctly as possible � at times using a sharp form and a focus on the problems in order to create a better and deeper socio-legal understanding of both the evolution of law and some of its problems.�����



Introduction to politico- and socio-legal theories of communicative differentiation

In the following sections I will discuss some of the main current theories on law and its relations to society. In this section only a short introduction to the theories will be offered. They will all be in the line of communicative and systems theories that all see law as one form or system of communication and modern society as more or less consisting of communications, spontaneous or more systematic. They are based on or in various forms contributing to two main lines of theories on communicative differentiation which very shortly will mentioned: - first the general theories of functional differentiation (of systems or social functions) into law, politics, economics, science etc., and � second the more specific (sub-system) differentiation into various knowledgebased discourses or disciplines. One main characteristic of these theories, particularly systems theory, which should be underlined here, is to view law as a particular social and communicative system with the function of handling the normative expectations of society and to solve conflicts on that basis. Specific social problems do however not always have their equivalent expressions in specific legal norms. There is also no automatic transformation between the social and the legal spheres. The social goals or intentions of law are often not fullfilled, and this is not necessarily irregular or unnormal. One of the consequences of the function of law is that it must somehow reduce the complexities of the social spheres to be regulated. It is rather to be expected that these cannot always be translated (direct�y or satisfactorily) into law. If law is to achieve its function of producing normative expectations in society, the operations of law must be bounded by its specific functions and rationalities. [7] Communicative and discursive socio-legal theories do then offer a more realistic and complex view on law in society in contrast to the assumptions of legal-dogmatic theories that law �works� (or the indifference to whether it does) and the moralistic critiques of some of the empirically oriented theories of the fact that law does not �work�. Law �works� in a particular way: by producing norms and normative expectations and not necessarily by realizing these socially.

Communicative and discursive socio-legal theories see law as a distinct and bounded form of communication and offer theories focussing on the boundaries between law and society and between law and other communicative functions/systems, including the obvious problems of �translating� between law and other forms of communication. The specific functions of and the conflicts between the different communicative systems may then help explain why law in some cases does not work.��

The institutional changes discussed above may then be seen in the light of the increasing functional differentiation and specialization which is an essential characteristic of modern societies. This evolution is embodied by the growth of the generalized and symbolic systems of communication such as politics, law, economics, science, art, religion, sport etc. and by the interaction and combinations of these. [8] Communicative systems are here identical to social/communicative functions (functions being a sub-group of systems). In Niklas Luhmann�s words: modern societies consist of communications, and they are differentiated by general social functions expressed communicatively. Rather than describing modern societies as hierarchically structured democracies and as relatively homogeneous nation-states they could be described as the interaction of these generalized systems of communication and thus as heterarchic. Their interaction can be characterized by qualitative differentiation and operational autonomy on the one side and mutual and increasing interdependence on the other. There are no hierarchical relations between these, only functional and social and thus continuously changing and historically specific. Vital parts of the dynamics of society should thus be sought partly in the autonomous processes of each system and partly in the interaction between them. The complexity of modern societies can thus be expressed and handled by the evolution of specific communicative functions. The boundedness of each such system enables the evolution of a sufficient complexity within. The complexity among the systems is handled by the various institutions and structural couplings enabling combinations of the different systems which have evolved. Within these institutions there may be many communicative �misunderstandings� between the systems, but they will also presumably over time learn to deal with this and to find institutional solutions. Below the levels of general social functions there will also be a further communicative differentiation (into systems) on the levels of organisation and interaction.

Two concepts which will be vital for the further discussions of legal decisionmaking in this article, should be presented here: complexity and contingency. Complexity is a primary characteristic of decisionmaking in modern societies qua all the various selections which have to be made more or less simultaneously, also when making only �one� decision, and the mutual and uncontrollable side-effects produced by the interaction between the selections. The accumulated effect is complexity. Contingency is the unavoidable side-effect of making selections. [9] The accumulation of several selections increases the contingency. Decisions involving many selections and their side-effects, or: increasing complexity and contingency, may then lead to an increased intransparency and instability in the changes of meaning formations.

These communicative levels of organisation and interaction can be compared to Foucault�scategories of disciplines, discourses, practices, knowledge. [10] Foucault takes his point of departure in the various degrees and varitions of elaboration of knowledge and practices. There are then discursive and more specific processes of meaning-formation in the different social sectors and subsectors, often based on regimes of knowledge or social practices. [11] Communicative and social processes may thus also be understood and analyzed by way of the more specific discursive and often knowledgebased processes of meaning formation taking place within the various social sub-systems below the level of the more general communicative systems discussed above.

Society is thus to an increasing degree being continuously constructed by the evolution of the generalized communicative systems and the more specific and knowledgebased processes of meaning formation and discursivity. The various communicative systems such as law, politics, economy, science, art etc. have their separate functions and linguisticly expressed codes, but in practice they are also increasingly intertwined and mutually interdependent. A vital part of the analysis of law should thus consist in the analysis of the interaction between law and other generalized systems of communication, and how law is influenced by social discourses. It will be my assumption that such analysis should seek to combine the knowledge of law as a separate and autonomous system and as part of society and its different systems of communication. [12]

The structural changes discussed above are affecting law and its institutions on three different levels of the system of law: - on its general function in society, - on its relations to other communicative systems, - and on its internal reflexive abilities. [13] The differentiation of these levels is vital for a more complex understanding of law in its relation to society. First: effects on the functional and societal level: The core of the societal changes of law are connected to the increased social differentiation, specialization and knowledgeorientation in most social areas. [14] The implication of these changes includes an increased social fragmentation and reflexivity. The general function of law and of normativity is then influenced by the processes of cognitivization and knowledgeorientation which may lead to a transfer from normative to more combined normative and cognitive expectations concerning the substantial questions in many areas. The general function of law will thus be led towards a procedural function. Second: effects on the level of the relations to the other systems: The relations between the different systems of commmunication may seem to become increasingly interacting and interdependent in quite intensive ways while simultaneously keeping their relative autonomy. [15] Their boundaries may thus become increasingly fluid and entangled while still retaining their specific functions. The emphasis of the performance of each system of communication, including law, will then be on its differentiated performance vis-a-vis every other system, such as politics, science etc., and not on its general social abilities. Third effects on the level of the internal reflexivity of law: The reflexivity within the system of law is influenced by an increasing complexity, intransparency and uncertainty due to similar characteristics of instability and change in the patterns of argumentation within the social sub-systems to be regulated. Traditional demands for coherence and simplicity in legal argumentation will be increasingly difficult to fullfill.

The result is a challenge to the more traditional rationality of law with its emphasis on relative forms of predictability and stability and on the independence and autonomy of law vis-a-vis systems such as politics and science. In some areas the consequences of these structural changes have been delegations from law to other systems of communication, in others a close reliance and openness of law towards the processes or discourses of other systems. [16] More generally the internal reflexivity of law is being forced to accept more varied, complex and changing discursive elements within law and thus to deal with increasing instability, intransparency and uncertainty as parts of its internal pattern of argumentation and dynamics leading to an increase of social risks in the application of law.


II. Changes in the social structure: - Challenging the forms and the functions of law

It is presumed here that vital social and institutional changes occurring today reflect on and have consequences also for law and the forms of normative expectations which are currently used. It is part of this presumption that some of these changes may lead to more dynamic, fluid and unstable boundaries between law and society. I will also presume that some of these changes may be paradigmatic for law � meaning that they may lead to vital changes in the forms and the functions of law: a strengthened emphasis on the procedural functions of law and thus an increased flexibility and destabilization. The increased flexibility may be seen both in the legislative and contractual forms as well as in their implementation. Some of these social and institutional changes and their effects will shortly be commented on below.

First: Knowledge, knowledgebased practices and technology are playing an increasing and intensified role in more and more social areas. [17] In describing �reality� we are not only increasingly dependent upon knowledge of the relevant field, we are also faced with having to make a selection among various versions of knowledge or knowledge regimes. An increased reflexivity is thus also inscribed in the process of knowledge. We are confronted with scientific disagreements without having the proper instruments to make selections, or we are merely faced with pluralities of knowledge in the form of different perspectives. Other communicative systems such as law and politics are thus increasingly dependent on knowledge and science as the basis of their reality descriptions.

Within the knowledgebased discourses there is a tendency to an increased differentiation and specialisation. This may lead to an increased reflexivity and fragmention in the general processes of meaning formation in society and thus to an intransparency in the cross-sectoral forms of argumentation. An argumentation based on specialised knowledge may seem accurate for internal purposes, but may paradoxically be rather intransparent for external actors. When depending upon specialised knowledge it has become increasingly difficult to explain it fully to actors outside that field via general or consensual forms of communication. We may then increasingly have to rely on each other as more or less specialised actors across communicative borders.

In many knowledgebased areas there is also continuous and often rapid change in the documented material as well as in the evaluations made � resulting in an increased instability as to what the current state-of-the-art may be. Modern societies have thus brought on an increased reflexivity and pluralism also in the knowledgebased and scientific areas. On the one hand this produces efficiency, flexibility and adaptiveness. On the other hand it also contributes to instability and uncertainty. Such scientific pluralities may vary from the application of various perspectives to vital scientific disagreements which are clearly incompatible. When confronted with such disagreements lawyers and politicians may have to make choices which inevitably may be contingent.

All these three aspects of the application of current forms of knowledge and technologies: the fragmentation of social communication, the rapid changes with ensuing instability and vital scientific disagreements, will pose serious challenges to law and politics and their reliance on general and consensual forms of communication. Having to make selections among various versions of knowledge and to handle rapid changes, contributes to an increased instability and uncertainty also in the legal field of communications. The increasing dependence on new knowledge and technologies will also imply that we are increasingly drawing upon the future and thus also future generations.

Knowledgebased reality representations are not only cognitive. They may also have strong normative elements and thus fusing the normative and the cognitive, or including normative elements in what is presented as cognitive. The rapid and often complex changes of knowledge and technologies make it impractical to deal with expectations other than those which have been made part of the field of knowledge itself. Considerations and values outside the field itself may then be too inefficient as regulatory instruments. The learning processes will then take place as part of the knowledgebased processes rather than as part of changes of specifically normative, and legally based, expectations. Normative expectations which primarily are part of the legal system, may then be too slow in changing and too distanced from the field itself. The functions of �legally� based normative expectations and of law in society are then challenged. [18]

Second: At the same time law has also extended its regime and its regulations onto an increasing number of social and economic areas and has thus created quite significant combinations of organizational and legal procedural frameworks in an increasing number of fields. There is thus a process of increased legalization, both in legislative and in contract-regulated fields. With the new processes and structures of multi-level governance (with the supra-, inter- and transnational regimes) it could also be argued that by simultaneously applying and combining several institutional levels the importance of law is increased: Politics will have to deal with legal texts and obligations from other institutional or constitutional levels in more comprehensive and binding ways than previously, and law is increasingly recognized as a more stable medium of integration than politics. [19] These obligations must also be interpreted by political institutions and may represent limitations to political manoeuvres. Multi-level systems of governance do then create new forms of interaction and interdependence between law and politics replacing clearer forms of hierarchical relations. This may both result in an increased legalisation of politics and in an increased politicisation of law. Via political interpretations of law the legal operations may be included into or influenced by strategic forms of decisionmaking.

The inter- and supranational forms of regulations will mean that we are not only increasingly drawing upon the future, but also increasing the space within which we regulate. [20]

Third: The extensive and rapid social as well as institutional changes occurring today are increasingly influencing and destabilizing our values and our normative reality conceptions. In many areas this means that we no longer have a stabilized set of reality conceptions or a fixed pattern of consensual social norms to refer to. Legal operations must often take place on the background of changing and destabilized reality conceptions and values. Even if this is not new, it has become increasingly pervasive, and it is presumed here that this has vital consequences for the operations of law. Law has always dealt with social change, but at the same time often been dependent on referring to more or less stabilized reality conceptions or social norms or treating these as implicit assumptions of legal arguments. What has changed is that social, economic and technological changes are now ocurring on an until now unseen scope, bothmore rapidly and more often containing significant changes. It is thus increasingly unclear what the underlying assumptions of law are. The application of new bio- and genetic technologies, with consequences for food production and medical treatment, as well as telecommunications and information technologies, with consequences for access to information and the protection of privacy, might serve as examples. These technologies have contributed to extraordinary comprehensive changes respectively in the fields of medical treatment and food production and in the infrastructure of information and communications and have thus also destabilized and changed our reality conceptions and our normative views in these fields � leaving us with pluralistic rather than consensual normative patterns.

Fourth: Modern or late-modern societies are characterized by an increasing specialization and differentiation of the several systems of communication: politics, law, sports, science, religion, economics etc. A vital aspect of modern societies is the increasingly intensive and intricate interactions, structural couplings and interdependencies which are evolving between the different autonomous and specialised systems. Law is not only a separate and autonomous institution. It is also deeply dependent on inputs from and interactions with political, scientific, economic and administrative systems of communication, cfr. above. There have thus evolved an increasing number of structural couplings between the specialised systems. �Governance� is for example no longer only specifically or primarily political and legal. It also consists of economic, technological and scientific forms of decisionmaking and institutions thus designating a broader range of governance regimes than previously and institutions which emerge as structural couplings or co-evolutions between various systems. [21] In this more multi-faceted form of governance the different communicative systems may interact and intercede in at times rather intransparent ways. Goaloriented and discretionary legislation will open for deep interdependencies between law and different scientific or knowledgebased areas.

Fifth: The increasing social and communicative differentiation, cfr. above, and the expansion of law and its adaptations to various social areas have also led to an increasing differentiation of the regulatory patterns and the forms of law. The social structures of the areas to be regulated, including the interests and the principles involved, vary enormously and thus also the possibilities of creating normative expectations. Social differentiation enables an increasing legal differentiation. The regulation of specific pensionary or social rights meets with quite different demands than the regulation of intellectual property rights, land zoning or environmental hazards. The different forms and structures of law and legal regulation may then also apply both different principles and forms of decisionmaking and thus create different argumentative and interpretive patterns of law. The varieties of material and procedural principles involved in the different areas contribute to variations in the decisionmaking and argumentative patterns. This may not be a problem, but the uses of the so-called �general principles� within the different areas of legal dogmatics may be challenged and increasingly differentiated.


A vital element of the study of law must then be concerned with how law and its internal operations deal with social changes and the normative changes and challenges it produces. This will include both the internal reproduction of law and the continuous processes of differentiation between law and other communicative systems. It will also include the processes of meaning production both within the legal system and as part of the more general communications of society. The questions of what law specifically is, how it relates to other communicative systems, and thus how it is a part of society communicatively, are becoming increasingly crucial for the understanding of law. This is due to the fact that the interactions and the complex interdependencies among the various general communicative systems have become increasingly vital for the whole self-description of society. The inevitable complexity of society is secured partly by allowing each specific system to evolve an internal specialisation and complexity (enabled by the limitation set by the code) and partly by creating coupling institutions where the systems may learn to combine and communicate indirectly. The understanding of how such coupling institutions evolve and how interdependencies are built up, must then be essential to the understanding of society. Law must be studied both as a separate communicative system with its own internal processes and as continuously in interaction with its environment and other communicative systems.




Knowledgebased discourses, new technologies and risk

The environment and the conditions for performing law and politics and for governance in general have thus changed and opened up for new modes of law and politics and for new ways of combining them with other communicative systems and sub-systems, particularly the many new and knowledgebased social sub-systems. Furthermore the differentiation and specialization of knowledge, science and technologies have resulted in the evolution of increasingly autonomous knowledgebased discourses and social subsystems with their own processes of meaning formation. Their processes are characterized by an increased internal reflexivity, specialization and complexity, in the form of the many selections/decisions to be made and the possible intransparencies thus arising. The application in society of specialised knowledge-systems and technologies have resulted in: - complex collisions between such systems, - the production of unpredictable side-effects, - and thus a continuous creation of socially constructed risks and complex forms of decisionmaking.

Examples of this could be the possibilities of governing and decisionmaking on issues concerning the application of complex bio- and genetic technologies and their effects on health, the production of food and the environment. These areas involve also medical treatment and basic questions of life and death as well as technically complex questions of possible, but uncertain long term effects of the uses of new technologies (in the environment due to the production of genetically modified plants as part of food production). These areas then combine the qualities of being: - ecologically vital, technologically dependent and complex, economically significant, ethically sensitive and part of our daily lives. The application of complex technologies in such areas, the evaluation of their effects and their regulation will thus involve dealing with: - different and conflictual formations of meaning, - long-term and unpredictable consequences, - complex decisionmaking, and - thus the creation of risk on all levels. Because of the rapid and comprehensive technological changes the application of such technologies involve the creation of possibly long term and unpredictable risks, and we have no clear answers on how to deal with this as part of legal regulations. The attempts of regulation in such areas have also resulted in regulation on an until now unseen regulatory scope, which in itself creates risks. The ethically sensitive questions connected to the application of bio- and genetic technologies are difficult to regulate on because they are still not part of any consensual understanding of reality. They also involve controversial ethical issues. There are still vital disagreements as to the factual representations of these technologies and the risks involved. The processes of balancing the different and partly contradictory meaning formations and considerations mentioned here in a rational and transparent way is thus rather complex. Regulation of these areas is unavoidable, but begs the question as to how rational decisionmaking, in its traditional sense, can be achieved here in areas without consensual reality representations and with rather incompatible aspects to consider.

����������� The problems of regulatory law, its legislative as well as its implementation aspects, in such areas will thus involve the following problems: - dependence on specialized knowledge and technologies placed outside the law, - dealing with the fact that these knowledges are in continuous change, unstable and object to different interpretations and vital disagreements, - the production of future and unpredictable side-effects, - complex balancings between incompatible technologies, social, ethical and economic factors, - future-oriented and thus unpredictable consequences to deal with, - the consideration of ethically sensitive questions without the background of consensual reality constructions. All these aspects represent significant challenges for vital traditions and qualities of our legal systems such as: - predictability, - equal treatment, - transparency, - fairness, and � the rule of law. There is an implication in the legal system that it contains both an element of normative predictability and an element of transparency and fairness in its discretionary operations. Such demands are hard to combine with the regulation on future, uncertain and unpredictable consequences, some of which may be rather extreme and the weighing of interests and considerations which are extremely different and rather incompatible.

Such regulatory problems represent challenges for different aspects of law as a legal function: - its external functions, - its communicative and relational abilities vis-a-vis other forms of communication and - for the internal reflexivity of law. This includes how the boundaries are drawn between the systems of law, politics, science and ethics.

New forms of knowledge and technologies may then change viable social relations, the relative stability of social fields as well as the possibility of creating consensus and - thus also the forms, the categories and the possibilities of law and of legal regulation. To some extent the new technologies and knowledges also enable interventions into human health and the environment which are qualitatively more far-reaching and intensive than previously � in so far as that they enable decisionmaking on life and death or on extreme risks in more far-reaching manners than before. This also creates challenges for the legal aspects of such decision-making.

Niklas Luhmann has raised the question of whether our increasing drawing upon the future in the form of these new forms of risk is so different and so comprehensive that they may need a new form of semantic and regulatory representation different from the regulatory semantics of law and money. The �social relevance of the future� and the over-all handling of �time� are, he says, insufficiently represented in these semantics. [22]

In some of these instances, such as those concerning the regulation of biotechnology and reproduction and of euthanasia, we may well be on the border of what we feel our legal categories can or should handle if we pay respect to the demands of predictability, coherence and objectivity. In the same areas, such as the uses of genetically modified organisms and of certain chemicals, we are dealing with the possibilities of such extreme risks and uncertainties that it seems difficult to judge whether we have the language or the categories to represent them. We are even making decisions with much more impact for future generations than our own. The weighing of environmental considerations, including the application of the precautionary principle, versus economic or efficiency-oriented interests in cases of extreme risks may seem like a challeng task due to the extremely different reality conceptions represented by the two. The specific applications of the precautionary principle is also unavoidably uncertain and contingent. In all these cases the very abilities of the internal reflexivity of law, however grandiose they may be, and the relative demands of law to coherence and predictability, are put to hard and challenging, may be impossible, tests. In such cases discretionary decisionmaking will almost inevitably have vital elements of intransparency concerning the balancing of the different factors partly because of the uncertainties of some of the factors to be considered and partly because of the extreme differences and incompatibilities between the different factors. It will be difficult to perform justice and fairness objectively under such circumstances. [23]

The globalization of the processes of the economy and the sciences as well as changes in the environment have the effect that social problems now are created on an international level. This contributes to the creation of regulatory demands transcending the current forms of nationally based legal and political processes and the forms of consensus and relatively stabilizing meaning formations which have been enabled in linguistic and culturally more homogeneous areas. National sovereignty is thus challenged by global law (lex mercatoria), international human rights, various inter- and supranational treaties and organisations and transnational networks (political, legal, economic, scientific). This leads to new forms of legal pluralism existing as a multiplicity of processes without clear hierarchies or any transparent relations between the levels, de facto or de jure. These processes may have very different foundations and trajectories vis-a-vis political democratic or culturally based topi of meaning formation. The existence of several parallell, interacting and competing forms of legal meaning formation, both within different institutional levels and within different cultural and knowledgebased contexts, will also lead to increased reflexivity and contingency and uncertainty in the decisionmaking processes.

These changes may then mean that law has lost several elements of its previous preconditional and processual stability, both regarding its institutional framework and the processes of meaning formation. The processes of social meaning formation which law traditionally has relied on for its social stability, have then become increasingly fragmented and destabilized due to the increasingly comprehensive and complex social changes. The fixed boundaries of the nationstate and its legislative sovereignty have been left for combinations of inter-, supra-, trans- and national law without very clear hierarchical or other relations. These institutional combinations also contribute to more intricate combinations and less stable boundaries between law and politics

����������� The interpretation of law and the legal language have relied on the relative stability of the processes of meaning formation in the social spheres. The increasing destabilization of meaning will mean that law is having to learn to live and to deal with meaning formation as continuous and unstable processes rather than as stabilized preconditions. There will be less stable patterns of argumentation and of the balancings of various considerations, interests and values. Each specific choice of argumentation may then both be increasingly contingent and at the same time have an increasing significance. When the social contexts and the language of legal regualtion become increasingly destabilized and continuously changing, their choice of argumentation becomes increasingly important.



Changes in the boundaries of law

The changing conditions of the processes and the practices of law should however not be described as a crisis, but rather as changes of the boundaries of law, including its forms, functional abilities and legitimacy. First there is the general boundary between law and fact, between the norms and the factual background on which they are applied. With the increasing reliance on various forms of knowledge and the experiences of others when we construct the factual background or premises of a legal case, and with the incerasing pluralism of factual presentations, what we call �facts� have become increasingly permeated by subjective, social and valuebased assumptions. The legal regulation itself also increasingly includes knowledge constructions in conceptsand standards, and thus the assumption they are based on. The boundary lines between �facts� and norms will then become fuzzy and more difficult to draw. On the other hand: The same tendency may also mean that what has previously been regulated by legal norms, may now increasingly be regulated by the contents of knowledgebased regimes and thus by more cognitively oriented expectations because of the more rapid changes in the knowledgebased discourses, and less by normative in the meaning of legal expectations.

Secondly there is the boundary between law and politics. The traditional separation of the functions of law and politics are being eroded by the immense processes of delegated and discretionary legislation and administratively implemented law, often intricately interwoven with the various forms of expert- and knowledgebased systems. Here the processes of legislation and adjudication not only merge and overlap, but may also be said to be replaced by forms of administrative decisionmaking where the combinations of and the boundaries between politics, law, administration and science/knowledge become totally intransparent. [24] The degrees of specialisation also contributes to difficulties in making judicial review effective (because of the dependence on expert judgements). Another aspect in the changing relations of law and politics is the increasing dependence of the political system on law in the form of an increasing use of international treaties and contracts. The increasing internationalisation and regionalisation of many social and economic fields has led to the demands of not only political cooperation, but also of the equivalent legally binding obligations. Political authorities may then have to make their own interpretations of the legal texts and documents involved or make selections among various legal interpretations offered.

Third is the boundary between science and knowledgebased processes and law. Law is increasingly dependent on the uses of knowledgebased processes, but how law uses and selects from these processes, in legislation and adjudication, is often unclear. This includes the questions of how law deals with the questions of special knowledge and scientific disagreements. When legal regulation is based on knowledge construction, the division lines between law and facts/knowledge become unclear, cfr. above.

Fourth is the boundaries between national and inter-, supra- and transnational forms of regulation and their respective institutions, cfr. above. Fifth are the changing boundaries between public and private forms of regulation. Here examples would be the increasing uses of contracts, outsourcing, private consultants, deregulation (internalcontrol) and state owned companies, and how they contribute to intransparent definitions of public and private. Sixth is the boundary between law and ethics. This is particularly problematic and precarious in the application of advanced technologies with unpredictable consequences and a lack of consensus � but where ethical references may seem the only possibility of regulation � disregarding the contingencies of its application.

The questions concerning changes in the forms and the functional abilities of law are interwoved with the questions of the boundaries of law, politics, ethics and science and of how these systems evolve, create social structures and institutions and thus interact in interdependent ways.

The previous democratically and nationally institutionalized as well as the culturally more homogeneously concensualized process of meaning formation also within law and politics are thus being dramatically challenged. This concerns both their functional and their legitimacy-creating abilities. Law has become an increasingly comprehensive and differentiated decisionmaking and procedural system, covering most of society with its legal forms. Law thus still contributes enormously to the relative efficiency of the coordination of society. The performativity of law has become quite vital. Law is thus confronted with the seeming contradiction of on the one hand becoming increasingly comprehensive and thus significant for the infrastructure of society and on the other hand having its autonomy and functionality challenged by processes of fragmentation and pluralism connected to both variations in knowledgebased regimes as well as to institutional variation. Various descriptions might end up depicting both the gain and the loss of the relative social power of law. Law may then paradoxically have become both increasingly significant and also more open and indeterminate, challenged by knowledge, science and and economy. Law may thus be gaining significance while losing autonomy.

The problem is whether it is still possible to create forms of law and politics which may be said to handle social risk and to function in sufficiently legitimate ways when the social basis of the decisionmaking has become more fragmented and the decisionmaking itself increasingly complex and uncertain. Or whether we may say that law is still functioning well in its own performativity with new and more complex combinations of law, politics and knowledgebased or scientific decisionmaking processes. [25]

The processes of the europeanization of law as well as of politics are quite illustrative of the forms of changes indicated above. It highlights the problems of the combinations of several institutional levels without clear internal relations. There is also substantial legislation concerning standards of products and production methods � where (1) knowledge and technology are used as parts of norms, and � (2) there have proved to be complex collisions between considerations of science, efficient competition and ethics.



III. Theories of the evolution of law and the legitimacy and the relations of law and politics

Within the legal sciences of this century too little attention has been given to theories of the evolution of law in its contextual and socio-legal dimensions, focussing on the relations between social and legal structures and processes. These would also be related to the institutional theories of law. [26] Separate theories of legal dogmatics, of analytical legal theory and of empirically based sociology of law have reigned, but in periods of paradigmatic and institutional change that will be insufficient as far an understanding of law also as part of society and of social communication goes. Since the beginning of the nineteenth century law has been transformed from having its foundation in natural or sovereignly given authorities of law to a system being based procedurally on the dual elements of individual rights and democratic forms of legislation, producing positive and continuously changable law, including changeable contracts. Inherent in this is a move from absolutely given values or authorities to open, flexible and changeable law � legitimized by democratically organized processes and by very basic forms of individual rights. [27] Even such forms and rights may be argued to be procedural and will unavoidable take on historically contingent forms, depending on the �legislators�.

Both the procedures and the forms of law have however undergone significant changes over the last two hundred years, even if they have kept some very basic characteristics. These paradigmatic changes in the forms of law and in the state have been described in different ways: - responsive law (Nonet and Selznick), - from formal to material and to reflexive law (Teubner), - �Towards a New Common Sense� (Boaventura de Sousa Santos), or- the relational program and the informational state (Helmut Willke) etc. [28]

The autonomous system of law or the �Rechtsstaat� were vital parts of the early democratic constitutions of Europe with their emphasis on the separation of powers and on the administrative state as well as its tasks as being limited. There was a clear division between the state on the one hand and the civil society and its citizens on the other. Law was to be positively given and changeable through legislation which again was based on the principles of legality and equal treatment. [29] The classical legal model of this period was the conditional where the legal norm was supposed to express clearly the object of regulation and all conditions to be tried in a stringent and transparent way, and where the ability to do this in a coherent manner was considered the very rationality of law.

With the evolution of the industrial, urban and capitalistic societies the state, however, had to take a wider range of tasks within public services as well as the infrastructure of the society, such as the general responsibility for health, education and the most basic social services as well as for the distribution of social compensations. Thus the welfare state evolved step-by-step over time. [30] The ambitions of its problemsolving have been steadily increasing, and they have also been influenced by knowledge society and the growth of various professions used by the state and their discursive powers. [31] Corporate arrangements were also increasingly used in some areas to achieve comprehensive compromises, particularly in industrial relations and the governing of key industries. From the 1930-ies many European states increasingly took on a responsibility for the functioning of the economy, and macro-economic models and instruments of economic interventionism evolved. [32]

The state and the political authorities thus entered into the more cognitive problemsolving spheres of society, leading to an evolution of a more goaloriented administrative and political orientation where macro-economic planning and the use of economic instruments became vital. This affected the forms and the functions of law significantly. Vilhelm Aubert has coined this evolution: �from the rule-of-law to the promotional function of law�. [33] Legal regulation was included in the strategies of social and macro-economic planning and governance. Partly this meant that law was combined with economic and other planning instruments under strategic, discursive and knowledgebased programs, and partly it meant that the forms of law were adapted to its new contexts. More traditional legal forms were combined with goal-oriented programs, discretionary standards, delegated legislation and the delegation of powers to various expert bodies. Legislation was used more intensely than previously in combination with social planning and economic as well as other cognitive instruments. The combination of knowledgebased discourses and socio-economic programs were often the basis to which the new legal strategies were adapted.

This has necessarily taken law beyond �law� in the stricter and purely formal sense. The interpretation and the uses of law within such new forms have to rely substantially on other discourses, be it social or more systematically knowledgebased, and their continuous processes which are external to law. Social and knowledgebased discourses and their reflexive processes are thus increasingly brought into and made part of the processes of interpretation and implementation of law. This may result in discursive collisions between references to the continuous processes within the social and the legal discourses. Where the social or knowledgebased discourses evolve around the social items and issues involved, the legal discourses will have to include the considerations of predictability, objectivity and equal treatment vis-a-vis previous cases.

In the application of goaloriented and strategic knowledgebased forms of law the function of law moves beyond the formal setting and evolution of boundaries between the citizens and the state and between citizens themselves which were the core and the rationality of a rule-of-law based system of law. The whole meaning formation in law then moves from a primary focus and configuration on the boundaries between citizens and the state to a primary focus on the realisation of social goals which are based on knowledge regimes and on political-strategic or ideological programs, and often with an inherent blending out of the aforementioned boundaries. Law then could be seen as either referring to or including social and knowledgebased discourses and/or political programs in more comprehensive ways than previously. These discourses and political programs have also become more dynamic and strategic in their processes and may thus make stronger impact vis-a-vis law than previously. Law has become included, as one of the instruments, of the more general strategies of realizing social and political goals, but will often appear as being challenged by the other more substantial discourses. Law may also appear in an increasingly instrumental and positively given version, tendentially losing its autonomy. The whole framework for meaning production and interpretation in law changes focus � for at least a considerable part of the legal system. Law is forced to opening up to references to and dependence on other communicative discourses and rationalities. [34] The social dynamics of these discourses and their weighing of social interests will often be relatively dominant in relation to law.

The uses of discretionary standards referring to knowledgebased concepts and their evolution has then brought a further and an increased dimension of uncertainty and indeterminacy into law, and it has meant comprehensive delegations of power to state administrations and their centralized or autonomous agencies. This evolution has meant that over time there has evolved whole structures of porous, overlapping and uncertain boundaries between the communicative systems and the institutions of politics, law, administration and science. Institutions have been created where knowledgebased discourses, politics and law are coupled in ways which do make it intransparent when there is a scientific, a political or a legal rationality at play. The specific rationalities and legitimacies of the different systems are however still important because information is selected and elaborated very differently according to each. Porous and overlapping boundaries may result in intransparent forms of argumentation even if the end results are quite dependent on what rationalities are at play. �Precaution� may for example be understood in very different ways within the scientific, the political and the legal system. �Equal treatment� may also mean very different things depending on which rationality it is referred to.

����������� Law in its strictly autonomous sense is thus challenged and to some extent broken up in its more intricate meeetings with the other communicative systems. Both the welfare state and the economic interventionism of the political economy involve references to substantial interests, knowledge-regimes and goal-oriented programs and thus also forms of rationality which transcend a rule-of-law rationality. [35]

The increase of various man-made risks, particularly due to the application of advanced technologies causing potential environmental and health hazards, has resulted in new challenges to the forms of legal regulation. We are to an increasing degree producing and also accepting unpredictable future consequences. Both the combinations of various technologies and the future consequences imply that we have created scenarios which are increasingly complex to regulate on. We have extended what we regulate on both in time (into the future) and in space (global space). These are then further dimensions of regulatory complexity compared to the previous of welfare state and economic interventionism. They are however all complex, founded on knowledgebased discourses, historically contingent and often open to rapid changes.

����������� With such new challenges the problems of instrumental goal-setting as a form of legal regulation have however become obvious. The increasing specialization of the various social subsystems have created complex communications within each sub-system. Internal complexity within a specific social field tends to limit the possibilities of influencing the systems directly and goaloriented from the outside. One solution to this is to regulate indirectly by procedural forms concerning how decisions are taken, and who may participate in the procedures. This may also contain general guidelines to the participants.Examples of variations of procedural regulation are: - self-control and �regulation, - the inclusion of various participants in the information seeking and the decisionmaking, - diversifying the information to be applied by demanding the use of risk analysis, environmental impact analysis and environmental, ethical of social auditing systems etc. The idea here is that either by making the organisation control itself or by demanding it to produce specified information, one can induce the organisation to reflect over specifically selected considerations, values or goals. Through both diversifying and selecting the information which a social system or a social field must produce or is confronted with, one may influence its own decisionmaking in specific ways.

Knowledge of the internal dynamics of each field to be regulated is another key to the construction of forms of self-regulation which may also include external political goals. Such forms of legal regulation have been designated as reflexive law. In Teubners definition the term reflexive law means identifying the internal dynamics of any social sub-system and thus using and influencing these in order either to achieve an increased internal democratic order or to integrate the field into external democratic processes. Often this can be done by using procedural mechanisms which may already be part of the systems, in the creation of more democratic or social forms of reflection within the systems. [36]

A fundamental insight from socio-legal studies of the 1990-ies is that the function and the role of law both have become more comprehensive (spreading its structures throughout society and by the strategic role of law as a communicative media in the processes of globalization and Europeanization), and at the same time in many areas have been eroded in a relative sense by the dependence of law on knowledgebased discourses and on the parallell and competing systems of politics, economics and science. The formal-legal sovereignties of the nation states have been challenged and eroded by on the one hand processes of globalization and Europeanisation and on the other by specialised and knowledgebased discourses. The replacement or the supplement of the nationally based legal systems by inter-, trans- and supranational law may however also have enhanced and strengthened the role of law. Because of its strategically vital functions as a communicative and relatively stabilised medium in the interactions between the various institutional and constitutional levels law is strengthened and does to some extent replace politics. Such institutional changes do however also pose serious challenges to the democratic legislative processes of the nation-states and thus to the legitimacy of law.

����������� These vital themes of the function of law in our current European societies have been thoroughly discussed in two significant contributions by Niklas Luhmann and J�rgen Habermas, cfr. above. [37] These two contributions shall be more thoroughly discussed in the chapters below. That will be followed by a discussion of Gunther Teubner�s works which is based on a discussion on Habermas and Luhmann. Michel Foucault�s works on law and the disciplines will also be included. From two very different theoretical positions Habermas and Luhmann have none-the-less adressed some of the same fundamental characteristics and problems of the current situation of law and its institutions in Europe. They also share some of the vital descriptions of the evolution of law and of society. They share the description of law as an autonomous system of communication. Luhmann connects this primarily to a sociologically oriented understanding of law as a specific system of normative expectations with the specific code of legal or non-legal. From the specific social function of law he does however also have reflections on the legitimacy of law. Habermas bases his understanding of law much more on its specific legitimacy connected to the institutions of democracy and rights. They both adhere fundamentally to many of the same descriptions of the evolution of the relations of law and society, cfr. above. [38]

����������� The same social evolution has also resulted in a comprehensive social and communicative differentiation concerning both the various systems of communication and the various social tasks or areas. Both Habermas and Luhmann agree on the fundamental significance this has for society. They disagree however on the possibilities of coping with communicative differentiation and on how to describe the problems involved. This would then also influence their views on the legitimacy of law and politics, and on what we mean by legitimacy in modern societies. Habermas insist on the possibilities of a superdiscourse beyond the differentiations of political, ethical, moral, pragmatic or legal argumentations, and that law may be such a super-discourse transcending the differentiations. [39] Luhmann insists that communicative differentiation creates systematic differences and thus gaps, collisions and lack of communication between the different systems or social fields. They can not be re-aligned or �understand� each other. The lack of a common understanding must be accepted. Communication can only be reached via various institutional or organisational arrangements (�structural couplings�) whereby the systems meet, confront, exchange information and learn to combine and to deal with communicative and systemic differentiation. There is no hierarchical order between the communicative systems � only heterarchy. The more specific relations between the systems can only be understood via their functions and the historic situations. [40] This does of course have serious consequences for the forms and the functioning of law. It is not omnipotential, but one of several key functions of communication in modernity.

����������� In their recent books they do however agree, to some extent, on the two most fundamental problems or challenges of our current legal systems. [41] First there is the immense increase in delegated and discretionary legislation leaving essential parts of the legislative task to administrative agencies with insufficient or inefficient political and democratic control. In both Habermas� and Luhmann�s theories the legitimacy of law and of politics is based on the dual existence and interdependency between democratic procedures and the existence of individual rights. Laws must be passed by democratic procedures and implemented with the respect of individual rights. Itis also inherent in both theories that the relationship between law and politics is based on their distinction as well as on their mutual interdependence. The overwhelming tendencies of delegating the legislative competences from political to administrative agencies are seen as a potential threat to the democratic and procedural legitimacy of law. The implementation of discretionary legislation is also seen by Luhmann as the enactment of politics rather than law. Luhmann and Habermas would however have very different approaches as to what legitimacy is, and how it should be discussed. Habermas insists that the characteristics of democracy and individual rights are transcendental values, but that deciding on whether they actually exist can only be done intersubjectively by following specific (democratic) procedures. Luhmann�s approach does not accept any validity tests as to the existence of legitimacy. Legitimacy should rather be seen as part of the operations of law and politics and is thus created and recreated by ourselves constantly. Legitimacy cannot be proved by any external or transcendental criteria. It can only be shown by us in our operations. It can only be accepted, or not, in the specific situation and is historically contingent. Luhmann does however discuss it vis-a-vis the general ideas of democracy and human rights. His errand is then not to make it totally relativistic, but to emphasize that the adaption of such ideas or principles will inevitably be historically contingent and thus shaped by (wo)men. We cannot escape the fact that we continuously create history, and that principles and ideas can only be but reference points.

Luhmann characterizes the administrative agencies and their work as politics not law, but without the democratic legitimacy and transparency of political institutions. Even with the uses of public hearings, acts of administrative transparency and elements of parliamentary control there are obvious deficits in the democratic and procedural legitimacy of administrative law particularly considering its comprehensive and material character. The problems of the lack of democratic control of administrative law have also been emphasized by the increasing uses of expertise and specialized knowledge, also from external expert bodies, both in the legislative and the administrative/implementing processes. The increasing pluralism and disagreements in the knowledge communities underlines the problems and to some extent the possibilities of control and review from the judicial side. Knowledgebased pluralism may on the one hand be said to increase transparency in decisionmaking processes � because monopoly situations are no longer possible. On the other hand it may also be said to increase the intransparency because of the problems politicians, administrators and lawyers may have in fully understanding, controlling and making selections from the coded languages of specialized knowledge and science. This may then result in intransparent or incongruent decisions.

Luhmann emphasizes the significance of the difference of the functions of law and politics. For Luhmann this plays an important role in the abilities of the communicative systems of law and politics to perform their functions in a sufficiently differentiated and complex way. Only by having a limited and specific function can a communicative system develop internal complexity. The legitimacy of law and politics also depends on their differences and mutual interactions.

Habermas talks of the diminishing binding force of parliamentary statutes and the threat to the principle of separated powers represented by secondary legislation. Only the political institutions have the legitimacy to carry out legislation. With the combinations of political, legal, administrative, professional/scientific rationalities at work in administrative agencies there is bound to be both a transcendence of legitimacy and intransparent overlapping of their boundaries. Such combinations are probably unavoidable of modern administrations and to some extent functionable, but they do simultaneously result in uncertainties and intransparencies as to what type of argumentation is really at work at any given time. The increasing extent of administrative legislation is thus at one and the same time both functional and a challenge to the legitimacy of law.

The second basic problem is connected to the changes of the political institutions from being primarily nation-state to combinations of nation-state with inter-, trans- and supranational institutions where the relations are heterarchical rather than hierarchical. The nationstates have transferred part of their political power to inter-, supra- and transnational institutions where they participate, but must share their power in new and more comprehensive ways. The democratic processes of the nationstates have however so far not been transferred in satisfying or sufficient ways to the other levels. The democratic element still rests on the national levels and are transferred from there on to the international scenes. Inter-, trans- and supranational decisionmaking is still very much negotiations and compromises between nation-states (their delegations or experts) which also may become relatively independent processes, or decision-making processes going on within international organisations and their secretariats. Democratically elected assemblies on regional or international basis are still lacking. The representative assemblies at work in regional or international organisations are then not publicly or politically accountable as such (collectively), only as representatives from the nation-states. The democratic legitimacy is thus still primarily within the nation-states, including what they bring to the other levels they participate in. The processes of globalization have then primarily concerned the economic, cultural and scientific processes of production and communication. Law and politics, and their institutions, have so far not been developped on the global or regional levels to the same degrees. [42]

Habermas insists that the democratic process bears the entire burden of the legitimacy of law and politics. [43] Inherent in this would be the necessity to evolve the democratic element of the processes of law and politics also on to the international and regional (European) levels of governance. The European systems of law have in a fundamental way been based on the combination of the rights of the individuals, the democratic processes of legislation and the autonomy of law vis-a-vis other communicative systems. To some extent the (democratic) processes have been attempted transferred from the national levels, but with insufficient systems of puboic elections and accountable governments. While technological, scientific and economic systems have been able to change in much faster and more comprehensive ways than the political and legal institutions this then contributes to an assymmetry between some of the factual problem structures in Europe and the institutions of democratic and legitimate decisionmaking.

Part of the problem here is that it may also be a question of how large and culturally heterogeneous the most basic democratic constituencies can or should be - in order to actually function in a communicative and democratic way. Cultural and linguistic diversity do also play an important role in the problems of cerating sufficient democratic institutions.

Both Luhmann and Habermas describe law and politics as being in a state of very significant change, and with an assymetry of their factual tasks and their forms of organisation and basis of legitimacy. They both call for theories which combine several perspectives. Habermas insist on the primacy of a normative theory which can contribute to our knowledge of how to reach normatively valid decisions and thus to the further evolution of democracy and social integration in fragmented societies. Luhmann on the other hand insists on the use of sociological theories in order to understand the role of law and the normative function in society. He also insists on basing our understanding of law on the theories of functional differentiation and on the specific communicative function of law. Law is only able to evolve its own internal complexity by having a limited code and rationality. The price of that is a lack of direct communication with the communicative systems of politics, science and economy, cfr. below. The theories of Habermas, Luhmann, Teubner and Foucault will be discussed and compared more specifically in the chapters below.



New socio-legal theories: Communication, discursive and systems theory

In the section above on the role of knowledgebased discourses, new technologies and risk as challenges to the legal function it was focussed on communicative differentiation and the role of the boundaries of each communicative system � when the emerging relations between law, science, politics and economics were to be analyzed. The questions of the boundaries of law cannot be answered only from within the law or the legal science itself. If law is a communicative function in society and thus a part of society, then the boundaries of law are also a function of the relations between law and society and of the social structures within society. In the following section I will shortly present theories of law and society which accept law as a normative order, but also as part of society and one of several communicative systems of society, and then discuss this further below. The theories of Habermas, Luhmann and Teubner will here be presented as socio-legal theories, in contrast to the politico-legal presentation in the section above. An understanding of law and society must also include knowledge of the social structures of society, of how they enable conditions for the production of normative expectations and of the relations between the social and the equivalent legal structures. The latter is what Gunther Teubner has labelled the organisational structure of society and the adequate complexity and structural readiness of law. [44] The social functioning of law relies on the relations of the structures of law and society, and not on each as a separate part. Knowledge of these relations may enable our understanding of the choices made regarding the forms of law (conditional structures, procedural legislation, discretionary legislation etc.) and the eventual problems of creating efficient law. Many of the current and traditional legal sciences are not sufficiently equipped to offer sufficiently productive theories on changes in the boundaries of law and society, or on the social inefficiences of law. They are often influenced by too severe separations between the traditions of legal dogmatic theory, analytical legal theory and an empirically oriented legal sociology, and thus do not have the theoretical instruments of boundary-thinking and of explaining the relations of law and society more specifically. Some proposals for what may be needed are partly a more evolutionary perspective on law, partly a functional perspective and partly more inter-disciplinary orientations.

����������� Both J�rgen Habermas and Niklas Luhmann have during the last twenty years delivered significant contributions to a more cross-disciplinary and comprehensive legal science where the understanding of more general societal changes also are used as preconditions for the understanding of legal change. They both have an understanding of modern societies as functionally and communicatively differentiated, pluralistic and complex and thus consisting of different and parallell forms of communication within the different social spheres. [45] Modern societies are becoming increasingly socially and communicatively fragmented and dependent on the complex interplay of various systems and discourses of communication. The tendencies of differentiation and fragmentation pose serious challenges for the socially integrating abilities of law and of politics. Habermas and Luhmann do however have different perspectives and use different theories, normative vs. sociological, for their further research into these problems. Habermas insists on the continued possibilities of the normative and thus integrative function of law in building on the ordinary language and in being able to perform across boundaries of the more specialized languages in spite of the processes of communicative differentiation, cfr. below. [46] Luhmann on the other hand insists that we have to accept and deal with the communicative differentiation also in law.

In Luhmann�s last book on law �Das Recht der Gesellschaft� he emphasizes the difference of law seen from within as a separate communicative system with its own normative dynamics and law seen from without as a part of society and influenced by its more comprehensive changes. [47] These are two different forms of knowledge, but they may also be combined in our understanding of law as a social system. Legal science and jurisprudential theories are concerned with the normative order of law as an internal system. The sociology of law studies the cognitive effects of law, and how society affects law. Neither of these directions can however alone deal with the questions of the boundaries and the relations of law and society.Luhmann�s proposal for transcending these theoretical division lines is that on the one hand lawyers should accept that law is a social function and a part of society and thus influenced by social communication and changes. Sociologists must on the other hand accept that law also is a separate and a normative system, and that knowledge and theories of law also are dependent on knowledge from within the system of law. Only by combining these insights can we reach knowledge of changes in the boundaries of law. This implies an interdisciplinary approach to law, cfr. below. [48]

Luhmann maintains in contrast to Habermas that law in having the specific function of producing normative expectations, participates in the general communication of society in a specific and limited way. Law is able to produce its functions and create the internal complexity of the legal system specifically due to its boundaries and the bounded rationality of the system. When law participates in the general or everyday communications of society, it does so from a specific point of view and rationality. It cannot hold a general form of �validity� � beyond its specific function. Law as a specific communicative function is thus defined by its boundary to society, or by being that boundary.

����������� Luhmann further emphasizes the role of the language in law. His view is however that the jurists normally make use of the ordinary language (as signs) combined with some specific concepts. The ordinary language is however used by law in a discursive and systemic way, within the normative context of law, which may make its legal meanings hidden for the lay person (or the sociologist). Linguistic analysis only would thus be insufficient because it would not have access to the systemic and discursive relations of language to the underlying social structures. Systems, communications or discoursetheories may enable combinations of sociological knowledge, and analysis of the language as parts of the social contexts. This would enable a more comprehensive understanding of the general processes of meaning formations which law also is part of. [49]

The similar aspects of the general descriptions of society and thus the starting points of Habermas and Luhmann should however not be overseen. Gunther Teubner has pointed to the fruitfullness of trying to combine their perspectives. [50] He does however maintain a primarily sociological perspective and shares Luhmann`s insistence on the functional and communicative differentiation of society as significant obstacles for the possibilities of a general normative form of communication of society. Normativity � in the meaning of normative expectations � and law must always be shaped in relation to the existing social and communicative structures. The challenge is then to create an adequate complexity and a structural readiness of law in relation to society. [51] The semantics of law must then be analyzed vis-a-vis the communicative differentiation of its surrounding social context.���� Teubner does however also accept the seriousness of Habermas` questions as to how social and normative integration still is possible in disintegrating societies and try to integrate them in his socio-legal theories. The proposals for further legislative strategies are clearly influenced by this.

With an emphasis on radical forms of communicative differentiation the forms of social integration must however be sought by identifying the integrative mechanisms of change within the internal dynamics of the systems and the sub-systems themselves and then applying these as instruments also for legal change. The identification of such internal reflexive mechanisms and the exploitations of their potentials of self-regulation and �organization in democratic directions are the main ideas and the characteristic features of reflexive law. The combination of self-regulation and procedural mechanisms are posed as the possible solutions for the regulation of complex and changing societies. [52] It combines respect for the internal dynamics as well as for the flexibility needed and may also be a response to the demands for integration externally. The paradox is that in functionally differentiated societies where the main problems are conflicts and collisions between the different social spheres, integration can only come from within the differentiated systems. Self-regulation and social integration may also be conflicting elements within the ideas of reflexive law.

Accepting legal pluralism may be another answer. Legal pluralism is defined by Teubner as the multiplicity of diverse and parallell more than conflicting communicative processes. Various legal processes could be seen as supplementing each other or as possibilities of combinations rather than as conflicting and incompatible. [53] Teubner thereby illustrates how functionally differentiated societies may evolve an increased tolerance for pluralism and complexity also in law and produce equivalent forms and institutions of law and thus still conceive of them as legitimate.

Michel Foucault has delivered contributions to the theory of law by comparing the institution of sovereignty with the mechanisms of disciplines, both as part of or as contributing to the institution of law. The older institutions of sovereignty (of the monarchs) have been replaced by processes of democratization and a form of public right, thus creating the basis for a more collective sovereignty � still however expressed by rights. A new form of power has however evolved outside the realms of sovereignty: the mechanisms of discipline. [54] They posess highly specialized procedural techniques and instruments based on knowledge and practices. They are oriented at the control of bodies in a much more direct and intense sense than the powers of sovereignty are able to. Foucault�s thesis is that modern societies rely upon somekind of combination of these two forms of power irrespective of their differences and incompatibility. The power of sovereignty is renewed via the use of the emerging disciplines. New forms of law as new public rights are created within the forms of sovereignty, but with the substance of the new disciplines. The forms of right may however conceal the new and often more intransparent forms of domination inherent in the knowledgebased disciplines. Law has then become a bearer of the disciplines in modern societies, but often without revealing this. Deconstructing the combinations of public right and the disciplines, and how they use each other, would thus according to Foucault�s theories be a vital key to an understanding of how the law of modern societies is constructed. We can see parallells here to Luhmann�s categories of communicative and social differentiation: law, politics, science etc. and their sub-systems.




IV. Politico-legal theories: Habermas and Luhmann

Habermas� normative theory of law

Habermas agrees with a significant part of Luhmann�s descriptions of modern societies as consisting of functionally and communicatively differentiated systems and thus also bound to social fragmentation and disintegration. The problem as Habermas states it, is �how the validity and acceptance of a social order can be stabilized once communicative actions become autonomous and clearly begin to differ.� [55] His description of the closure and autonomy of the differentiated systems is however less radical than Luhmann�s. Habermas insist that societies cannot exist without social integration. Here Habermas distinguishes between the life-world and the system-world with their equivalent forms of communication. He thus differentiates between on the one hand the instrumental systemic forms of communication such as money, administration, specialized sciences etc. with their specific codes and autonomy and on the other hand the forms of communication of the life-world belonging to cultural traditions, social orders and personal identitites and which have not evolved as instrumental and specialized. Across the boundaries of the various differentiated and instrumental communicative systems belonging to the system-world, Habermas maintains that there is an �ordinary language� which functions, and which primarily is part of the life-world even if it also �threatened� by the system-world. The ordinary language does not contain a substantial or discursive �meta-regie�, but it forms �a universal horizon of understanding� and possesses a merit of multifunctionality within the lifeworld. It also, to some extent, has an ability to translate between the lifeworld and the more instrumental and specific systems. It can however not itself operationalize the messages of the codes of the systemic languages. [56] Law is however in Habermas� terms a universal language with the ability to operate both in the system and in the life-world and thus also to translate from the systemic languages of money and administrative power to the life world and vice versa in an operational way. Law can also encompass the different argumentative forms of pragmatic negotiation, moral and ethical discourse, cfr. below.Law thus has a unique position in Habermas� descriptive theories of society.

It is however the positivization and the legitimacy of law which has enabled its operational abilities across the borders of social differentiation. That is: law is the form of positively given and changeable legislation (authoritative, written, publicly available) legitimized via democratic procedures and individual rights. Vital elements of the systems of money and administrative power cannot be put into societal operation without the functions of the positive system of law. In Habermas� terminology law thus guarantees a socially integrating network of communication. In arguing for this he also refers to Parsons� theories of �societal community� where he emphasizes law and morality as general and second-order institutions and as safety nets or transmission belts where other integrative mechanisms do not function. [57] Law thus encompasses money and administrative power as well as solidarity as the basis for its integrative and operative function.

����������� Habermas� insistence on integrative functions and on legitimacy as preconditions for the functioning of society must be considered vital to his further theories on law, society and communication and gives his analysis a normative direction. [58] In assuming the necessity of social integration his task is then to analyze the different practices or possibilities of social integration. This includes the analysis of the practices of law and politics. His normative perspective is in many ways contrary to the sociological theoretical presumptions of Luhmann who keeps the observation of social differentiation and its various forms of coordination as his main focus.

����������� Habermas agrees that the secularization and differentiation of modern societies leave them without any transcendental or otherwise given consensual substantive values that may contribute to the legitimacy of society. Social integration is however dependent on the extent to which society has reached at some kind of consensus. In modern differentiated and changing societies values do not exist transcendentally. They can only be agreed upon by continuous communicative processes.Legitimacy is thus left to be based on forms of procedural arrangements which must be found in the general and not the systemic spheres of society. It is then the qualities of the procedures in question which will be decisive for the legitimacy of the decisions. The general labels of these qualities are democratic and deliberative. Behind these labels are demands that decisions should include all the involved and concerned, that all information relevant for the case should be available, and that this should be discussed in a free, non-interested and fair manner. Habermas insists on using the term �valid� about the decisions which are reached at by the correct or valid procedures.

This leaves the task of legitimation with communicative forms such as law, morality and politics and their specific procedures. Habermas criticizes the use of procedural norms which are taken directly from the internal dynamics of the social sub-systems, as being insufficient for the justification of a legal argumentation. His view is that the legal system cannot operate as a closed and self-sufficient system. It includes information and arguments from many settings and communicative systems. Even decisionmaking within one specific social/legal area should reflect a broader of procedural principles. Habermas presupposes that legislation is based on the existence of discursive and free forms of opinion- and willformation in the political public sphere and in civil society. Legislation within any area should reflect a broad procedural discussion. There is an interpenetration of �discursive lawmaking and communicative power formation� across the boundaries of all social sub-systems which stem from the fact that reasons have a motivational force in communicative action. [59] In the life world there is uncoerced and unsystemic forms of communication which may be freely motivated by reason. Law is thus not only a separate and autonomous form of communication, but also one based on and with access to general and rational forms of communication in society and thus to a reasoning which exceeds the particular social sectors.

Law itself does not contain given values apart from its general basis of procedural democracy and individual rights. It is rather a medium for the transmission of the various interests and wills of the members of a legal community. The rational motivation of law does however not come automatically. It will depend on the argumentative and the communicative forms used in each specific case. In the general communication of the life-world there are different modes of will-formation which are used in our everyday life. Habermas differentiates between: - bargaining pragmatic, moral and ethical. Each of these has a specific purpose in the everyday problemsolving. Pragmatic bargaining is used for ordering preferences or realizing goals which are already given. Ethical orientations are used to reach general norms about our shared forms of life. Moral orientations are used in normative questions following goal-oriented cooperation. Habermas insists however that law-making may encompass, use and transform them all into the legal form. [60] Legal argumentation is then a general form of communication with a wide form of legitimacy.

����������� The legitimacy of law must as mentioned be secured in procedural arrangements. The basic and existent legitimacy of law in Western societies thus rests on the democratic procedures of legislation and politics. [61] The emphasis on democratic procedures for the legitimacy of law as well as politics leads to a deeper search into the various forms of democracy. Among the traditional forms Habermas juxtaposes the liberal against the republican version as two poles on a scale. Liberal is used in the narrow and Lockian version of an emphasis on basic rights and a limited state functioning only as a guardian of economic rights. Here law would have a formal rationality and the cultural or contextual background of the processes of will-formation are considered irrelevant. Republican is used in the communtarian version with the emphasis on democratic will-formation as ethical-political processes of self-understanding. Here the common cultural background will be quintessential for the quality of the decisionmaking processes. Habermas criticizes on the one hand the liberal model for its instrumentality and focus on economic and individual rights and on the other hand the republican model for the identification of democracy with commonly established cultural norms and thus what would often be a too narrow and illiberal cultural conception. As an alternative to these models Habermas goes on to advocate a deliberative model of democracy. This model emphasizes the further evolution of an argumentative model of democratic procedures. The decisive element is to enable the inclusion of all relevant considerations and interests. In a deliberative, non-prejudicial and open process decisions may thus be reached at in an informed and non-interested way. This should also be a functional solution to the increasingly complex processes of decisionmaking. In complex societies the obtaining of information, how it is handled and how it is argued, is vital for the outcome of such processes. Habermas presumes that it is possible to construct procedural forms which are neutral vis-a-vis the relevant interests, and that the participants are able to argue in a deliberative and objective way. The liberal model is thus enriched and varied at the same time as the pitfalls of presumptions of substantial values and cultural background of the republican and communitarian model is avoided. [62]

There must however be developped some such known and generally recognized patterns of procedures for the citizens to be used whenever needed. Habermas finds that we have this within the democratic procedures for lawmaking and with the guarantees of individual rights. The two systems of individual rights and of democratic procedures mutually guarantee the freedom of both and thus also the legitimacy of the production of legal norms. Democratic procedures are �the only postmetaphysical source of the legitimacy of law�. [63] Individual rights guarantee the freedom of democratic procedures and decisions. Democratic procedures provide the potentials of discursivity and pluralism in political will-formation. Both individual rights and democratic procedures exist in modern societies as parts of the legal structure, guaranteed by law and as preconditions for the legitimacy of the further production of law.

����������� Law in Habermas� theories is placed at an intersection between the instrumnetal systems of economy and administration and the life-world spheres. Law includes the rationalities not only of market and administration, but also of solidarity. The processes of law may thus be contradictory and ambiguous. What seems most difficult to accept in Habermas� theories are first his too easy acceptance of how the functionally and communicatively differentiated systems of modern societies may be combined within law as a universal mode of communication endowed with the ability of encompassing the different communications within itself. Habermas does not really confront the problems of communicative differentiation. That is: the fact that the different social systems represent the world in different and to some extent conflictual and irreconcilable ways, and then how to deal with the different and colliding representations of reality within the framework of law. He just presumes that law can transcend the differences. Secondly there are equivalent problems concerning his model of �ideal� and non-interested procedures for deliberative decisionmaking. It is still unclear how the different participants in a decisionmaking procedure which all may have various contextual relations to the theme being discussed, can become sufficiently dis-interested parties as long as he also accepts the functional and communicative differentiation. It is also unclear how it can be secured that �all� the relevant arguments will be presented. Habermas does not deal with the unavoidable fact of non-knowledge. Habermas still however insists on the possibilities of ideal conditions for discussions and on reaching what he calls �valid� solutions across the boundaries of functional differentiation and also on complex matters including contradictory social interests. [64] This does however mean that he has no solution to the documented problems and the inefficiency of the implementation of regulatory and goal-oriented law. His theories are really unable to relate to that debate.

Habermas� interests lie instead in the theoretical problem of the relations between the factual and the normative. The tension between the factual and the normative is inherent in social communication and in the uses of language as the normative must be an aspect of the forms of communication which aim at any kind of integration between individuals. At the same time the limitations of the normative are equally inherent. Habermas does however not explore the overlappings of the cognitive and the normative in knowledgebased social discourses.

����������� Habermas also discusses the relationship between law and morality which is also normative and used for conflictresolutions, and why morality cannot substitute law. Questions of morality are connected to each individual and to his/her capacities as rational and reasonable persons. Law however is part of a collective and generally binding decisionmaking system which the individual alone cannot dispose of. In Habermas� own words it is part of a �jointly exercised autonomy of citizens�. [65] It thus enables communication and coordination of complex societies across borders of anonymity and of moral differences. It does not free the individual of moral thinking in each case, but on a general basis behaviour according to legal norms will be accepted. This is enabled by the generalized form of the positivity of law. Habermas conceptualizes the positivity of law as the most advanced learning process suitable for complex and modern societies due to its generalized and flexible abilities. He does not see any functional equivalent to this in modern societies for the reaching of morally obligating relations and mutual respect among strangers. [66]

����������� Law is thus, in Habermas�theories, an essential part of the social integration of modern societies. By creating and guaranteeing general patterns and procedures for communication, will-formation, conflictresolutions etc. law removes part of the burden for doing this from the individual citizens. If modern societies can be said to be socially integrated through the uses of norms, values, markets and administration, then law as it has evolved today is part of fullfilling the functions of social integration on all these levels. [67] Normative expectations are a vital part of coordinating and stabilizing the social behaviour of individuals across boundaries in time and space and thus also a part of social integration. Positive law is the key to a stabilisation and further institutionalisation of such expectations.

����������� The current problems of law and democracy and their legitimacy are however connected to the increasingly differentiated, complex and disintegrating modern societies. The power of experts, administrations and private organizations in both legislation and implementation are threatening the legitimatory basis of lawmaking. In Habermas� view these problems may however be overcome by the uses of ordinary language and by our abilities to improve our modes of intersubjective communication. The democratic procedures as we know them must be further developed for the various arenas of expert and highly specialized administrative decisionmaking and also for the forms of negotiations with private organizations. In my view however these strategies do not take the problems of communicative differentiation, which also are documented by the extensive research on the deficit of implementation of regulatory law, sufficiently serious. The colliding discourses or communications can not be resolved in a satisfying and subsequent way within a theoretical scheme which limits iyself to a focus on law as a universal mode of communication, also in a substantial way, and non-interested discussions as the primary mode of problemsolutions. [68]



Luhmann on law and politics

In Luhmann�s theories functional and differentiated systems of communication and the mutual relations of these systems are essential for the functioning and the social integration of modern societies and for the developping of institutions in such societies. The different systems of communication and their functions have evolved historically aand as part of modernity and also as environments and thus as conditions for each other. Law and politics are two such systems which have evolved interdependently, both functionally regarding their qualities and legitimate-wise. In the public sphere the differentiation as well as the combination of law and politics is vital. The key is an interdependence of differences. The code of politics is power � non-power, and its function is the distribution of power. In modern societies democratic procedures and openness have been the preconditions of institutionalized politics. Politics is thus the dynamic and free communicative processing of social interests. Law on the other hand is the stabilization of certain political and social processes into legal norms. Politics produces legislation which is then temporarily stabilized into law. Law is procedurally bounded in both the legislative and the adjudicative processes. The legitimacy of law as well as politics rely on the combination of democratic legislative procedures and the rule of law via individual rights. Law must presuppose preceding dynamic and open processes. Politics rely on law to create the necessary (relative) stability for its decisions to be implemented. The two dynamics presuppose each other. The positivization of law has enabled the relative stability of complex normative communications across boundaries of time and space and thus also the handling of complex social coordinations.

Within many other theories legal and political actions will be analyzed from the point of view of the unity of the event. In systems theory there is an insistence on the significance of the differences and conflicts within �the event�, and how it is these differences which enable both the production and the handling of complexity. The differences and gaps between the systems of communication are thus vital and productive and unavoidable parts of modernity. Events or decisions may thus also be explained by the lack of communication or by misunderstandings instead of by communication.

����������� Both Habermas and Luhmann have however also pointed to vital changes in the functions and relations of law and politics. The increase of specialized and material forms of legislation have also led to an increase in the delegations of legislation from political to administrative and adjudicative institutions, and thus often to administrative levels which are highly specialized and often beyond effective forms of parliamentary control. Luhmann maintains that this means that the administrative levels have changed from legal to political in function, but at the same time without any corresponding changes in the procedures which could grant the necessary legitimacy, in this case of democracy and transparency. [69]

The common legitimacy of law and politics in democratic procedures and individual rights combined with the differences of their functions have been vital for the evolution of the forms and the functions of law and politics in modernity. The study of the interaction and the interdependence of law and politics is a vital key to the understanding of these systems and how they evolve. With the increasing role of knowledgebased discourses in many areas of law the relations between law and science, and law and economy, will also be vital areas for the research on the evolution of law.


Summary of Habermas and Luhmann: Law as the combination of relative stability and flexibility. The interdependency of law and politics

Both Habermas and Luhmann emphasize the fundamental significance of the European tradition of democratic politics and autonomous law for the ordering of society. They also both emphasize the combination and the interdependence of politics as the �free� and open form of communication and law as the bounded and relatively stabilized form. Their legitimacy is also secured by the same combination. The political and the legal operations as well as their institutions rely on each other both inn their operations and their legitimacy. They can thus not fully be evaluated separately. They both acknowledge the fundamental significance of the positivity of law which enable the combination of variation and selection (changeability and thus flexibility) with the form of relative stabilisation and thus a liberal and transparent form of decisionmaking. The positivisation of normative expectations into law, as a general social system, has enabled the stabilization of these norms and simultaneously their continuous changebility and possibilities of variation. Positive law also enables communication across borders of space and time and the coordination of anonymous entities. Law is thus both continuously changeable, enabled by the legal procedures of legislation, adjudication and interpretation, and has simultaneously enabled the relative stabilization of norms, institutions and procedures. Both elements of the legal function has a fundamental significance for the coordination of social behaviour in complex societies.

The legal system demands some kind of coherence throughout the processes of legislation, adjudication and interpretation, but the interpretive and pragmatic traditions of law allow at the same time for relative forms of variation, pragmatism and intransparence. Luhmann has called the legal system the immune system of society. [70] It does not repair its problems directly, it enables society to deal with them without necessarily confronting and solving them directly. Normative expectations and legal norms may both have vital functions even if they are only on the symbolic level. For Luhmann the very functioning of the operations of the legal system is significant even if the norms to a large extent are not followed. The function of law is to take care of the normative expectations not the cognitive, and the very function of normative expectation is that they are not always lived up to. Habermas on the other hand emphasizes the role of law of social integration and will then more clearly emphasize that there are connections between social structures and legal norms.

����������� Both Luhmann and Habermas do, however, emphasize the need to combine the knowledges on the organizational forms of society and the corresponding (in)adequacies of the organizational and the semantic complexity of law in order to understand the functioning of law in society. [71] Through the combination of such knowledges the evolution of law as a part of society can be studied. The understanding of law as the law of society underlines the need of more comprehensive legal sciences which continuously reflect on the relationship between the organisation of society and the organizational structures of law. Both Habermas and Luhmann accept the functional differentiation and specialization of modern societies and the impact this has, in a very general way, for the relations of society and its law. They have thus both favoured forms of procedural paradigms for their descriptions of the current forms of law. From then on their interests of knowledge depart in different directions, Habermas in a normative direction and Luhmann in a sociological.

����������� However, they have both contributed significantly to the evolution of a more comprehensive legal science surpassing the boundaries of legal dogmatics and empirical sociology of law and emphasizing the questions of the law of society. This has meant : on the one hand acknowledging the autonomy of the legal system, its normativity and its internal processes, and on the other hand emphasizing that law is always part of a society, and functions in relations to its organisation and constellations of interests.

����������� Their primary differences, due to their different interests of knowledge, evolve around the character and the radicalness of the functional differentiation and its consequences and the role of normativity in the analysis of law and politics. Habermas� primary interest concerns the normative and legitimatoryaspects of the evolution of the procedural paradigm. His preoccupation is with the socially integrative qualities of law and the legitimacy of law. In his view, cfr. above, democratic procedures are today the main legitimation of law. As it would seem impossible to change the tendencies of delegation and decentralization of legislation and administrative decisionmaking, the challenge would be to develop more democratic procedures also on the various decentralized and administrative levels. This is also the main challenge of Habermas� proceduralist paradigm of law.

Luhmann on the other hand has primarily a sociological interest of knowledge of the society and its law. In doing this he maintains partly the functional differentiation of society and its consequences as a primary aspect of modern societies and partly selfreference as the primary dynamic of the social systems and reflection as the dynamic between the systems and society. He also maintains a systems theory point of view and thus a radical closure between the different systems of communication. Even if there is a general and common everyday language, the systems of politics, economics, science, law etc. each produce their own linguisticly expressed systems of communication, and these systems cannot communicate normatively directly with each other. Normatively they thus produce systematically different meanings emanating from their codes and functions.

With the emphasis on communicative differentiation, nonhierarchic relations and complementarity there is also an inherent pluralism in how we communicate about society. The communicative functions deliver different normative contributions. There will thus be different �meanings� concerning one and the same event.The different functions evolve via each other. They are complementary rather than alternative. Social complexity is both created and managed by communicative differentiation.

A pluralism of �meanings� based on the different functions and activities is thus unavoidable and necessary. Among these systems of communication there is no one which is more true than the others. Their perspectives, their abilities and their forms of knowledge are only different. Insistence on substantial forms of consensus, not only procedural ones, across the functional boundaries might even result in forms of authoritarianism. Instead of a consensus ending a debate one might rather see a never-ending process of debates with preliminary solutions being followed by new preliminary solutions. The ability of seeing different aspects of an event or a situation might be more important than agreeing.



V. Socio-legal theories: Luhmann and Teubner

Luhmann`s sociological theory of law

Systems of communication: normatively closed and cognitively open

Niklas Luhmann�s theories of law are drawn on the basis of and are part of his general theories of society. One of his general theorems is that the whole world must be seen as one �society�, and everything that takes place in the world are part of that society. Nation-states can not any longer constitute �one society� because they can not be regarded as having closed borders � as seen on a sociological basis. They are too permeated by regional and global communications (cognitive and normative). The first decomposition of society is the system or functional differentiation. [72] In world society there are then several general systems or functions of communication such as law, politics, economics, science etc. They are all autonomous and normatively (autopoieticly) closed around their codes (law � non-law, power - no-power, money � no-money etc.). At the same time they are all as part of society environments for each other and cognitively open to each other. They will thus indirectly and cognitively influence each other. The interaction and the mutual interdependencies between the various communicative functions are vital parts of societal communications, and this includes misunderstandings and lack of communication. Such interactions may over time evolve into institutions where the different systems are coupled and combined. The vital question is then how such interactions occur more specificly. The different systems are then contexts for each other at the same time as their relations are quite complex and diverse.

����������� Social complexity is achieved by the dual processes of internal complexity within each system and the interaction between the different systems. [73] The internal complexity can only be reached by the setting of a specific boundary in relation to which the system can evolve and reach a further differentiation. Otherwise the system would become too undetermined. This is done by the development of a specific code which then functions as the rationality of the system (examples: law/legal, economics/money, politics/power, science/truth, religion/belief, love/love, art/esthetics etc.). System-internal dynamics and complexities are insufficient alone. Social complexity must also be achieved by the interactions and interdependencies between the communicative systems. Each system is normatively closed according to its specific code, but cognitively open to information which is then �translated� into the language of the system. This means that each system evolves its own constructions or pictures of reality. When the systems interact, they interact via these differences and thus indirectly rather than directly. The communication between the systems may then also be said to consist of a lack of communication as much as of �communication� in the sense of understanding.

The interactions may over time evolve into institutions or what has been called �structural couplings�. This designates that the different systems over time differentiate internally and learn to communicate more specifically concerning various situations. When this occurrs at the same time within several systems, this may be called co-evolution, interpenetration or structural couplings. [74] All these concepts have been used by Luhmann. These co-evolutions or couplings may occur as part of organisations, more or less formal institutions or negotiative frameworks. Within the same organisational framework or cognitive information different communicative systems may then learn to co-evolve and also build common institutions despite the distinctive differences. These learning processes are a vital part of how society works and how complexity is achieved.����

Functionally differentiated societies are then characterized by simultaneous processes of increasing specialization within each communicative system and equivalently specialised interdependencies between the systems. These interdependecies are however cognitive and organisational and do not have common normative features. Such processes enables both the production and the reduction of social complexity.

The understanding of law as a general system of communication must thus include the understanding of law both as a separate system of communication with its own normative dynamic based on the code and the rationality of law and as a part of society influenced also by other the communicative systems operating as environment. The sociological knowledge of law must on the one hand accept that law is a separate and autonomous system. The legal and internal knowledge of law must on the other hand accept that law is also a part of society, and that it is thus also created in relation to its environment which consists of other communicative systems.

Luhmann maintains that the interesting question about law is not its �nature� or its �sui generis�, but its boundaries, as they are continuously being created in the process between the system and its environment. [75] Each system can thus be said to primarily be a boundary. Focussing on the boundaries of law must then demand a combination of the knowledges of law as a system and as part of its social environment. Connections between the legal and the sociological forms of knowledge are illuminated rather than left out. This would be the consequence of applying systems theory, and it is also the project of Luhmann�s book on law �Das Recht der Gesellschaft�.

In identifying law it must always be differentiated from something else, seen in relation to something else. [76] The combination of the two forms of knowledges would thus be necessary in order to understand how law evolves as part of society, and of how the boundaries of law are continuously being redrawn when new factual questions arise or new normative situations are adressed.

The micro-elements of Luhmann�s theories of the social systems are communications. [77] Social systems do not consist of human beings, but of communications issued by human beings. It is communication which realizes the relations between the individuals and thus their social existence and systems. They consist of conveyance, information and understanding and cannot be reduced from these. Social systems, in Luhmann�s sense, can be formed on several levels of society. Luhmann distinguishes between social functions (the generalised symbolic media), organisations and interactions. The communicative functions evolve from the generalized symbolic functions of modern societies and their codes: money, law, art, religion, politics etc. [78] The evolution of these systems is part of the functional differentiation of society, cfr. above. Communication can also be differentiated on the level of organisations and even less generalised: on the level of interactions. On all these levels we will talk about communicative systems. Communication can also be systematized by lesser degrees than the systems: - as semantics, as programs and themes. In other theories such communicative formations may be labelled as discursive practices, formations or disciplines. [79] Our communications are part ofcollective systems of communication and must always be understood as such.

The dynamics of each communicative system, such as law, must be understood on the basis of the selfreference of each system. [80] Each system operates on the basis of its own code or rationality (law: legal � non-legal, science: truth � non-truth, politics: power � non-power). These codes are not transcendentally given. They are rather continuous operations which are continuously creating new applications of the codes and thus historically contingent. Each system operates self-referentially on the basis of its code. The binary character of the code, legal � non-legal, implies that the code also constitutes the boundary of the system indicating continuously what is inside and what is not inside it. The internal dynamics of the system is thus normative on the basis of the code and closed to other normative influences. The system will however continuously receive information from the outside. It is thus cognitively open. All external informations will however be normatively transformed by the code when entering the system. It is the existence of a boundary which enables the creation of an internal complexity.

There will thus continuously be communicative operations within the system vis-a-vis the code of the system. The systems may thus continuously change due to the information and the signals from outside, but always on the basis of its own normative code. In Luhmann�s words: �Law communicates about the world, not with it.� Law consists of continuous legal operations and thus of legal responses to its challenges.


Normative and cognitive expectations: The further differentiation of law and the role of knowledge and learning processes

From a sociological standpoint the function of law is based on the need for society of having normative expectations (and normative expectations about normative expectations) � as opposed to cognitive expectations. Normative expectations are characterized by being counterfactual and may be disappointed, but will still go on existing. Cognitive expectations will on the other hand presumedly be changed when countered. Normative expectations have played a vital role in the stabilisation and the coordination of society. They have been institutionalized, and thus more easily conveyed, in the form of positivised law. One could thus argue that it is the function of conveying and stabilising normative expectations that characterizes modern law, rather than that of being a coercive order. Positive law has contributed to specific forms of social order and enabled coordination over distance and among anonymous persons. The function of institutionalised normative expectations (law) which have been perceived of as legitimate, has been vital for the evolution of modern societies because it has enabled the co-existence of complex and conflictual social problems with the creation of relative forms of stability by the use of legal norms. [81]

The parallell existence of the social and the legal spheres have thus enabled the continued combination and the (productive) differences of social and legal problemsolving. Social problems may be temporarily �solved� by legal regulations while at the same time continue in their complexity and their search for a socially based problemsolving. The forms and the more specific relations of legal and social problemsolving constitute vital parts of the structuring and the characteristics of modern societies. The evolution of these relations will be discussed in this section.

Normative expectations are not created in a vacuum. They are created partly in relation to the (changing) social structures and partly in relation to the already existing norms and legal structures. The specific structures of the normative expectations, will then depend on the quality of the social and communicative structures and processes of the society in question and on what types of normative expectations they enable, as well as depending on the processes and the communicative qualities within the legal system itself. This will concern both the contents of the norms and their form. [82] Gunther Teubner has shown how in identifying new forms of law we must first identify the forms of social organization and dynamics (including the types of conflicts, interest-constellations etc.) (cfr. Habermas) and then discuss what the adequate social complexity of the law could be (contents and form) (cfr. Luhmann). [83] Identifying the social problems and deciding on the appropriate legal form are then two different questions. There is no direct connection or translation from social problem to legal form, but for the law to function effectively there should be some connection.

This may in some sense be regarded as common knowledge. Within the perspective of the theories of functional differentiation and systems theory this insight is however, by the contributions of Luhmann and Teubner, given a more radical version. In systems theory there is a realisation that law is a totally different communicative system than politics or economy or the various social sub-systems where legal regulation is applied. The communicative difference (which is also a difference in rationality) between law and the area of application does mean that making law work is regarded as a rather complex problem, because of the difficulties of entrenching the social sub-system with any form of external (legal) and effective regulation. A more sophisticated form of thinking taking the two different rationalities and their different dynamics into consideration is thus needed regarding what forms of legal regulation which would be able to entrench the specific social sub-system. It is here that the identification of the specific dynamics of the social sub-system becomes relevant.

The form and the structure of law are dependent on the degree of complexity and on the social differentiation of society. The democratically organized societies have evolved from more �simple� into increasingly complex and differentiated societies, cfr. above. Legal and regulatory regimes have as a consequence evolved from rule-of-law into more complex forms where economic interventionism and welfare state schemes have become integrated into or combined with the specific legal forms. Economic and welfare state concepts have become pivotal standards around which regulatory schemes are built up. This does however mean linking law much more closely to externally decided dynamics. It also means the evolution of a parallell process of legal and social dynamics, linked to each other, but with at times intransparent mutual influences. This has led to an increasingly comprehensive legal system, but also an increasing and intricate interdependence between law and other communicative systems which also may contribute to an increased indeterminacy in law.

The uses of forms of material law which refer to social or knowledgebased discourses or practices may then challenge the autonomy of law. The dependence on external social discourses may also lead to unpredictability and uncertainty in law. This will occur when the external social discourse becomes the primary reference of a specific legislation � in ways which may weaken the reference to previous legal cases, texts etc. The more integrated such external social discourses are in the material forms of regulation the greater the likelihood of a resulting unequal treatment and unpredictability as seen within the legal program. [84] The referral to social or knowledgebased discourses may also reflect a change from normative expectations based on law to normative expectations being part of social or knowledgebased discourses. This may however also change the character of normative expectations, cfr. below. These are problems which have been elaborated on by several lawyers, legal theorists and legal sociologists. [85] Gunther Teubner has on the basis of these problems produced his theory of reflexive law as a possible answer to the regulatory problems by insisting on a combination of procedural paradigms of law with a focus on the identification of the internal dynamics of the field to be regulated on, cfr. below. [86]

Regulatory law has in many fields thus evolved into combinations of procedural and organizational rules with increasingly open and discretionary standards and goals. The implementation and interpretation of such standards will tend to take place, on the administrative level, by more or less specialized agencies that often have developped their own professional and normative discourses within the field, or that refer to otherwise accepted state-of-the-art knowledge of the field, or even national or international standards . Adjudication by courts will in many fields occur quite rarely and may also be dependent on the same experts and professions. These forms of law are thus quite flexible and open to discursive changes locally, be it professionally or politically. This may on the one hand be looked at as contributing to the preferencing of local, sectorwise or decentralized processes. On the other hand it may lead to a dependency on the same local or sectorial forms of power which may be difficult to control, and which may enable unequal treatment. Local and sectororial power is ambiguous. On the one hand it is flexible and open to local variations and needs. On the other hand it may also invite the misuse of local power and be difficult to control.

This evolution in the forms of law could then also be characterized by the formulation that law also has been unburdened and supplanted by other systems of communication (science, economy etc.) and then by the more specialized discourses within these (various scientific or professionalized discourses or disciplines) which will have both cognitive and normative elements. The increasing evolution of knowledge and of sciences, albeit in very pluralist forms, in almost all social areas has led to both an increasing specialization and cognitivization of many areas, and also to increasingly rapid and comprehensive changes. This has again contributed to a tendency of replacing previous material legal norms with general standards which in turn will rely on and refer to knowledge-based schemes or reality representations. [87] Social and cognitive changes are occurring so fast that legally based normative expectations may become inadequate or unnecessary. Cognitive expectations or reality representations based on various forms of knowledge will however also include normative elements, and these will be changeable as part of the knowledgebased discourses. Normative expectations in the legal form may then in effect be replaced by the internal dynamics of knowledgebased discourses and their more efficient and socially integrated learning abilities. Knowledgebased discourses contain complex and internal processes which are both cognitive and normative, and which thus learn and change efficiently as part of the social field in question.

Normative expectations are then replaced by forms of social and knowledgebased learning where both cognitive and normative elements are included. A basic aspect of the evolution of law and society today is then to what extent the new social structures are able and willing to learn on a cognitive basis, or whether they still need normative expectations which exist beyond the immediate forms of cognitive learning. [88]



Globalization and risk: extensions of law in time and in space���

The general tendencies of globalisation seem, so far, to have effected some of the communicative systems more comprehensively than others. The cognitive structures of the sciences and the economy seem to have been more easily open to the dynamics of globalisation than the systems of law and politics. [89] One very straightforward explanition of this is the fact that law and politics have been more intensively institutionalised on the level of the nation-states. They have also to a large extent been legitimised through the democratic procedures and institutions of the nation states. The democratisation has again been enabled by the existence of common languages and elements of common social and cultural history within the boundaries of the nation-states. The processes of globalisation within some of the social and economic fields have however resulted in both increased communications and increased problem-creation on the global level. This is now challenging the structures of the legal and the political systems. Common political discussions and democratic institutions are however still scarce as phenomena on the global level.

Massmedia, new forms of technology (telecommunications and information technology), science (and networks based on science) as well as financial markets are today increasingly globally based both as infrastructures and also as substantial processes. Legal or social equality or justice are in contrast themes which are still primarily developped locally, nationally or regionally, even if the semantics of international human rights have been widely recognized.

In Luhmann�s view the global situation can be expressed by the metacode of inclusion and exclusion rather than in terms of social justice and equality. [90] The tendency is that either you are included, or you are excluded. This distinction is general rather than partial and sustained and dominated by economic structures. If you are excluded from some resources, there is a likelihood that you are also exempted from others. Economic and scientific processes dominate vis-a-vis the political and legal which presumedly should be able to enforce at least partially such codes as social justice and equality. International human rights are in many ways a legal semantic which is not coupled to the economic system, and which thus easily becomes too inefficient.

����������� Luhmann also emphasizes the changing role of risk as a challenge for the legal system. Due to technological, economic and social changes humanly created risks (in the various forms of decision-making) have increasingly become part of society. Luhmann connects the increasing risks to the increasing amount of decisions which continuously have to be taken in politics, in the application of technologies and in the coordination of the different social spheres. [91] This includes many of the areas which concern our most basic needs such as transport, the uses of energy, medical services and the production of food. In some of these areas the application of specialised technologies may result in unknown, possibly long term and unpredictable side-effects which cannot be evaluated with sufficient certainty on a scientific basis at the time of their first applications. In other areas the problems areprimarily the unintended side-effects produced by the combinations and collisions of various fields.

Law will then also have to learn to deal with the regulation of areas with significant and possibly unpredictable consequences. The idea of this is not new to law, but the new comprehensiveness of man-made risks, due to the accumulated application of new technologies, has added new dimensions to the problems of their regulation. The environment including its biodiversity is being changed and manipulated in more comprehensive and radical ways than previously. New technologies are taken into use and being spread and combined much faster and more efficiently than previously. [92]

By the application of new forms of technology we are extending our rooms of action by increasingly drawing upon the future and the global space. [93] The results are dramatic increases in the number of decisions to be taken and in the amount of unpredictable consequences and side-effects produced. Also the legal decisionmaking becomes increasingly complex under such changing circumstances. Normatively based predictability is certainly challenged by this, and it seems hard to think that law will not change as a legal institution. Predictability and trust may have to be dealt with on a procedural level, and thus be placed in specific procedures, negotiative institutions and processes, institutional actors and knowledgebased discourses rather than in material norms. Normative expectations may hereafter be primarily procedural or integrated into knowledgebased discourses (and their learning processes) or may increasingly have to learn to deal with completely unexpected and at times brutal changes. [94] Luhmann has suggested that communication about the risks produced by modern society, cannot any longer sufficiently be done by the communicative systems of law or economics. New semantics and institutions must be developed in order to describe and thematize the social relevance and the qualities of the various risks. [95] ���



Teubner: - The socially adequate complexity of law. Reflexive law

Habermas� and Luhmann�s theories concern the role and the abilities of law in a societal and evolutionary perspective. Their theories include an emphasis on the structural interdependency between law and politics, and thus on the need to analyze these also in relation to and as boundaries for each other. [96] Gunther Teubner has linked on to the other aspect of Luhmann�s theories: - the relations between law and the social spheres and structures it regulates. Teubner has tried even more closely than Luhmann and Habermas to combine social science and legal knowledge in trying to understand how modern law actually works in practice. In referring to their combined emphasis on the one hand on the organizational patterns of society and on the other hand the structural and conceptual readiness of law he has continued this line of research in a more specific socio-legal direction. He has focussed on how we can identify first the internal dynamics of the system to be regulated and then secondly what the socially and conceptually adequate complexity of law might be in a specific area or situation. The underlying assumption is that if law is to function effectively there must be adequate relations between the social and the legal structures/dynamics. [97] Another assumption is that the social sub-systems or spheres often have internal complexities which are impossible to match for the legal system. In the legal regulation there may thus also be a necessity of reducing the complexity of the field. The core question is then how this can be done still retaining a sufficient level of complexity. This type of legal strategy should then reveal the increasing differentiation of modern law � as a response to thesocial complexity.

Teubner bases his work on the theories of functional differentiation, but he is less concerned about the relations and the institutions of law and politics and the legitimacy of law than Luhmann. Teubner is more interested in seeing the legal field as it is including secondary legislation, administrative implementation, contract-regulation and judicial decisionmaking. The legal field will then be seen as consisting of several tangled or hybrid-like politico-legal practices and institutional conditions. Teubner then has a more open mind to the changing character of law, its more fluid boundaries towards politics and administration, and he includes legitimacy as part of those changes, not as an externally given. He also emphasizes administrative legislation and decisionmaking as particular areas of interest both because they are quantitatively significant practices in society, and because they due to their institutional settings often are intimately and directly influenced by the relevant social and knowledgebased discourses and practices. At least these relations are often more visible at the administrative than at the judicial level. The implementation problems are also more visible and significant there. Where Luhmann characterizes part of administrative law as politics rather than law, consequentially dismissing parts of the administrative law from law,Teubner goes further in analyzing the specific character of administrative law as a field of its own, but also as law. The results of these analysis have been the theories of reflexive law and also some original theories concerning the changing character of private law. The latter includes how the Lex Mercatoria has become a part of the renewal of global law and also theories on the increasing social responsibility of private law, the autonomy of legal persons and the uses of reflexive and procedural contracts. In the discussions of the domains of both private and public law the procedural and organizational design of law are then vital aspects of how Teubner sees the current evolution of law and the emerging of a reflexive law.

In Teubner�s view the functional differentiation of society has resulted in radical forms of functional and communicative autonomy within the various social systems or spheres of society. The result is that centralized planning and integration as the main strategy of legal regulation cannot work, and that the socially integrative mechanisms have been moved from centralized to decentralized arenas while also being dependent on the interactions of the autonomous systems. [98] The generalized media of communication such as money and law have immense infrastructural power, and they can function integratively on a very instrumental level. Law however can only function socially integratively as long as the legal forms of communication within the specific sub-systems are socially adequate. The increasing specialisation within the different social sub-systems, including their dependence on other social discourses and the ensuing complexity, might result in limited effects of the general forms of legal regulation. In the insistence on the relevance of social integration Teubner does however include elements of Habermas� theories. Habermas insists on the significance of democratic and deliberative procedures throughout society as preconditions for its social integration and its legitimacy. The reformist project of Teubner then becomes to search for democratic dynamics within the various social subsystems, and to use these as parts of the legal regulation. Teubner�s significance lies in pursuing the ideas of Habermas on much more local and specific levels of society. The politico-legal emphasis are exchanged for the socio-legal. Teubner then enters a more differentiated and complex level of analysis: - how the collisions between social and legal discourses occur within very diverse and specific social spheres. Here it is not the political, but the social and the more specific legitimacy of law which is at stake, necessitating also more socially specific levels of analysis. Teubner takes the consequence of Luhmann�s processual thinking of legitimacy � as part of the operations not as pre-given � further than Luhmann does. He does this by accepting law as a social fact and changing the focus of legitimacy from the political to the social level.

The core of the theories of reflexive law is then a demand to on the one hand identify the dynamics within the social sub-system to be regulated and on the other hand to create legal concepts and forms of regulation which may be socially compatible. Teubner accepts democracy as a measuring standard, but by emphasising the social differentiation of democracy as a prerequisite for its further evolution he also transcends Habermas. This is however where the sociological-realistic theories of Luhmann and the normative ideas of Habermas collide on a principal level. Teubner attempts to solve the dilemma by focussing on the communicative and social differentiation of society, with resulting social autonomies. He then goes on to pursue the ideas and the possibilities of democratic procedural regulation. This may be done by varying the participants of the different procedures or by securing the inclusion of specific considerations or specific types of information (or elaboration of information), such as by demanding the uses of risk assessments, environmental impact assessments etc.

He thus opens up for a discussion of comparing the internal dynamics of the systems and their �opportunity structures�with democratic patterns of procedure, and of how to select and strengthen such democratic elements within their internal dynamics. [99] Reflexive regulations must use the identity of the social systems in question and their internal dynamics as the focal point of the regulation. It must hatch on to the internal processes of the systems, and from there try to analyze how they can contribute to a furthering of democratic processes within or between the systems. Teubner�s concept of reflexive law thus combines the focus on internal and selfreflexive mechanisms and on increasing democratic and social procedures. [100]

The specific function of law is partly to create normative expectations which can contribute to predictability and social order, and partly to solve the conflicts of other subsystems which they are not able to solve themselves. Doing this will normally demand a model of the social reality which reduces its complexity. In other words: what is needed is a legal-specific model constructed to contribute to a legally based solution of social conflicts. This is then why the legal system is labelled the immune-system of society. Law is presumed to be able to �solve� any social conflict put before it on legal terms or within a legal rationality. Whether the conflict is actually solved socially is quite another question. There may also be a situation where the conflict is solved legally on a temporary basis, but still goes on to exist on a social basis. The search for social solutions may then go on.

Where sanctions which are adequate to the system itself, are available, such as in many economic and contractual areas, the legal �solutions� are clearly strengthened. The use of prison sentences should here be regarded as external and non-adequate, and thus more contingent in its effects, which has also been endlessly documented. Society does however need some such form of immune system which is available, and which at least temporarily and symbolically will deal with the problem. This then implies a bounded rationality of law, and it underlines the fact that law also is based on a reduction of social complexity.

One solution could then be to emphasize the procedural and organizational mechanisms of law and to hook up to and refer to the reality constructions of other systemic or knowledgebased discursive practices. Procedural regulations will then only refer the solution of the problems to specific actors or institutions with knowledge of the social system in question and to their reflections on the problems. Essential parts of the material regulation will then be delegated to the social discourse or sub-system itself. Law would thus avoid having to create material �solutions� which in some cases might be too reductionist vis-a-vis the social sub-system in question, and thus might contribute to the problemsolving in too destructive or inefficient ways. Law would at the same time strengthen its own qualities and abilities of creating and improving procedural and reflexive mechanisms without �corrupting� itself in creating too reductionist or falsely authoritative constructions of social reality. A clearer picture of how social and legal sciences and knowledge might be combined, could emerge. [101] Each system uses its own abilities and functions at the same time as the legal emphasis is put on the procedural and processual interactions and forms of interdependence between them.

Teubner then very clearly accepts the social fact of differentiation and the fact that the different communicative systems perform different functions. One consequence of this is to accept the limitations of law concerning material regulation, the significance of the interdependencies between law and other communicative systems and social discourses, and then to concentrate the resources of law on its procedural, negotiative and organisational abilities. Teubner however, more than Luhmann, keeps an open mind as to how the different systems may chanhge, interact and co-evolve. He is less concerned with whether administrative law is law or politics. His focus is more on discussing the various consequences of the problems of administrative or secondary legislation, their lack of efficient implementation and the abilities of law, politics and science to co-evolve in various ways with the areas of administrative law.

����������� In his later works Teubner emphasizes the autopoieses and the self-referentiality of law more clearly, self-referentiality and -organization being the primary dynamics of all systems. He also emphasises the dependence of law on other social and economic processes for external information. [102] Teubner then continues the research on how the systems interact. His answer to this is through the exchange of information. In specific situations there will be exchanges and then simultaneous transformations of information in many systems. The result will be several co-evolving, but different versions. This occurs by way of interference, interpenetration or co-evolution between the systems. Such forms of co-evolution may take the more specific forms of structural couplings, institutions or negotiations. What Teubner wants to point to here is that there is simultaneously a cognitive openness and normative differences and thus closure between the systems. [103] Co-evolution will then mean the simultaneous, but also productive existence and interaction of different versions.

First the legal system can improve its cognitive abilities by including information in order to construct a �legal reality� of the sub-system to be regulated. Information from other social systems to law is only indirectly accessible and will thus always be normatively transformed in order to function within the legal system. The presence of facts in the legal system is ultimately decided by the legal rationality and its dynamics. The �legal reality� is then constructed by the dynamics of normative expectations and legal conflict resolutions: In order to create norms it will often be necessary to reduce the complexity of the specific area or case. The demands for coherence may go in the same direction. Another legal dynamic is �treating equal cases equal, and unequal unequal�, which also may give signals to the reduction of complexity. Then there may be more specific sectoral ordering principles concerning for example rule-of-law procedures, various individual rights, the uses of fairness as a balancing principle. These concepts contain distinctions which are specifically legal, and which only function within the legal system.

The reality constructions of the different social systems can only be parallell, but they may also be improved by the intersystemic qualities of the concepts used. These concepts may be used in all the systems in question, but will still have different meanings in each system because they relate to different rationalities. Teubner�s conclusion here is that what law needs is knowledge of the processes and the interaction of the other social systems so that it may latch on to these interactions rather than to the systems themselves. This would mean developping forms of co-variation and co-evolution between for example the economic systems and the legal system in the parallell constructions of the field of collective bargaining), or between the scientific and the legal systems in their constructions of risk oriented areas by the use of risk analysis and concepts such as scientific evidence and the precautionary principle. [104]

Another way of dealing with the gaps between systems is by interference. That is: overlapping structures, events and processes shared by several systems where they can co-evolve. Another name would be bridging mechanisms, institutions or structural couplings. [105] Such structures are then mainly events for the co-evolution of several systems. The systems are given an occasion for common evolution, but their communications are still system-specific and parallell. The institutions of collective bargaining may also here serve as an example of such a structure. It is an occasion where both economic and legal, and also solidaric systems, participate and co-evolve more closely, and where common institutional infrastructures are developped � while different reality constructions persist. State budgets are another example of an institutional coupling between politics, economics and law. Different rationalities are then contained within one structure or process � combining without corrupting their internal dynamics. Legal regulation may then design such institutions and procedures. In this way regulation influences what perturbations and irritations the systems are subjected to. Such designs may also be forms of procedural regulation.

����������� The relations between law and the various social fields are then dominated by their mutual autonomy and their different, but parallell reality constructions. [106] The legal and the economic constructions of collective bargaining are separate, but they also reciprocallyinfluence each other in quite close ways. The two processes are then co-evolutionary, via the exchange of information, and common occasions and institutions. [107] Legal regulation will occur via procedural norms, exchange of information, co-evolution in institutions and common processes of learning.

����������� The communicative systems of law, politics, economy and science are second-order and autopoietic systems which all rely on some form of social continuum as their precondition and environment. They are also increasingly structuring this social continuum. [108] Through such interferences, cfr. above, they are continuously creating co-evolutionary and increasingly more intensively interactive environments not only on the level of general functions, but also on the levels of organisations and interactions. Such interferences may also result in the evolution of several subsystems on these levels with new forms of co-evolution, new hybrids or common institutions. The meanings will however be different in each system which is takingpart in the event. A �risk assessment� may have different �meanings� in the systems of science, politics and law. �Solidarity� may mean different things in politics, in economics, in the industrial organisations, among the employees etc. The concept of �precaution� may be another example. Specific data may be interpreted differently, and there may be different data and distinctions which are the most relevant or interesting. The precautionary principle is, for example, used as a vital regulatory concept, having different meanings in science, law and politics, but also functioning as a coupling mechanism. Such concepts will combine the systems, but always at the price of a certain loss of meaning. The legal system can never alone motivate social behaviour, but if its concepts co-incide with socially adequate concepts and are used in common events or in structural combinations with other systems, the efficiency of the communication may increase.

����������� Co-evolution via exchanges of information, standards and key concepts is then a vital form of interaction of late-modern societies. The specialised communication within the systems continues while coordination is secured via such forms of co-evolution also on the levels of organisation and interaction. The general communicative functions also change and evolve via such forms of co-evolution.��

����������� Teubner suggests another way of creating interference: by formal organizations which will facilitate and enforce communication across the boundaries of functional systems. [109] By the design of such organisations and its procedures links between different social systems may be created. More or less formalized forms of bargaining or negotiation may also be used as organizational linkages between the systems of law, politics, science and economy. Examples of this could be NGOs, forms of collective bargaining, cross-disciplinary boards, ethical boards, forms of mediation, consensus conferences, governemental expert committees, standard setting committees etc. Such forms of negotiations or mediations may be seen as common events enabling co-evolution and opening up for communication across systems boundaries. Economic information may for example be transmitted more directly and efficiently to the labour unions within the boundaries of a common event such as a collective bargaining process. Political signals may be transmitted more efficiently when given within a corporatively represented committee. Scientific signals may be delivered to the political system via a governmental commission or directly to the legal system through standardization procedures. The role of law may be to provide forms of formal organisations, cooperations and procedures for the common events to take place.

����������� In Teubner�s further writings he increasingly emphasizes the fundamental significance of functional differentiation as a form of pluralism of social discourses, not only on the level of general social functions, but also at the level of organisations, interaction and social practices. The unity of law embodied by the sovereignty and the legal constitution as �The King�s Two Bodies� has become obsolete. [110] Law is being increasingly internally differentiated, as a response to the interactions with the socially and culturally differentiated systems. The legal regulations of the welfare and the interventionist state have evolved via interferences, co-evolution and common institutions between law, politics, economics and knowledgebased discourses. Such couplings enable law to increase its regime, but may simultaneously threaten the autonomy of law.

Teubner also clearly refutes Habermas� solution of a relative compatibility between the different discursive modalities of law, morality, ethics, negotiation and pragmatics, and the suggestion of a moral-legal super-discourse reigning through the collisions is rejected as the differences between the modalities are too systematic. [111] Where Habermas insists that law may use, include and translate all the other modes of communication into its own forms of argumentation, without being colonized by these, Teubner argues that this is underestimating �the legal proprium� or the specific functioning of the code and the rationality of law. [112] Law is configurated specifically to create norms and solve conflicts. In doing so the code of legal/non-legal and the formula of �equal cases must be treated equally� are vital in its own transformation of information. Law is specifically evolved to carry out exactly these functions and no other. Law is the immune system and the conflict solver of society not its moral high chair. Moral or ethical arguments cannot retain their �originality� when used by law, but are processed into the code of law. [113]



Legal differentiation and new forms of governance: Autonomies and co-evolutions between law, science, economy and politics

The processes of globalization (economy, science) have in Teubner�s view further enhanced and given a decisive bend to processes which already are embedded in modernity and its processes of functional differentiation. These events are now ocurring to such an extent that the powers of democratic political and legal processes are being severely challenged because they have not evolved institutional forms on the global level equivalent to those of economy, science and technology, which are more structurally compatible with the processes of globalisation. [114] The increasing differentiation within science and the economy will also contribute to a need of equivalent forms of differentiation in law and politics, or to a deeper integration of science, technology and economy within the processes and the forms of law and politics.

Another approach would be to argue that the concept of government should be replaced with a broader concept of governance encompassing economic, technological and knowledgebased processes as well as the political and legal. [115] Economic and knowledgebased systems do not only relate to law via politics and legislation, but also directly and umediated. They could also be said to be forms of governance in themselves. In international law, Lex Mercatoria, and partly in contract law, economic dynamics are referred to or translated directly into law � in �relative insulation� from the state. [116] In standardization and professional regulations the norm-producing processes evade politics and state law and create their own regulatory systems. In parts of the specialized legislation the dependence of law on science and knowledge would for all practical purposes be quite predominant. Law will under such conditions be heavily dependent on other social systems for information and reality constructions. In many cases the external social discourses may be so dominant, and also normative, that the relative autonomy of law is significantly decreased. The specific relation of law to politics and democratic legislation is thus strained. Law is increasingly shaped by multiple social sources, decentralized and in heterarchical structures.

Teubner also insists that in modernity law has lost any form of general and ontological unity. It has rather become increasingly internally differentiated due to the influence of the variety of social discourses in the fields to be regulated. Such pluralism in the social and cultural sources of law will create multiple identities also of law. This also spills over into the uses of the principles of fairness and justice. Teubner argues that the internal differentiation of law has been enhancedqualitatively � to the extent that it is shaped more by the plurality of external social discourses than by many traditional material legal categories. In Teubner�s words : law has become �..a multiplicity of fragmented legal territories that live in close contact with their neighboring territories in social practices.� [117] An example of this would be how law now refers to or reconceptualizes a multitude of evaluating standards of reasonableness and fairness taken from specialized social discourses and not only the very general bona fide or bonus pater familias figures. [118]

The increasingly differentiated �reality� will result in an equivalent differentiation of the legal standards and concepts to weigh various considerations within a legal text, such as justice, fairness, proportionality etc. What is deemed to be �just� or �proportionate�, and how we at all think about these concepts, will necessarily vary with the configuration of the social area we apply it within and its range of considerations. This may be old news, but the point is that the range and the quality of the diversities of what may be deemed to be �just�, is both increasing, and the various standards becoming more incompatible. Teubner formulates it this way: �..the law delegates its norm-creating task to other on-going argumentative practices�. [119] The demand for a more socially adequate law has meant a demand for a more differentiated law.

For the understanding of the processes of law under such conditions Teubner postulates the need for knowledge of the social discourses influencing law and sociological analysis enabling an further understanding of the evolution of law via categories such as the new triad of social differentiation, social structure and legal semantics. [120] Law is exposed directly to fundamental social conditions and thus also to multiplicity and social contradictions more intensely than before both due to the increasing significance and intensity of the knowledgebased discourses and due to the processes of globalization and the weakening of its links to democratic politics. Teubner also talks about �the double fragmentation� of society�cultural polycentrism and functional differentiation� � to which law now is exposed more directly. [121] The processes of globalization are further enhancing the processes of social and legal differentiation.

Put differently: - there is a simultaneous strengthening of social and economic processes of specialization and fragmentation and a weakening of democratic politics due to their lack of inter- and supranational structures. In such a situation of multiple influences and diffuse social change the legal semantics are also destabilized and increasingly open for influence from social discourses. To some extent these problems of instability are however coped with by the flexibility conveyed by the various forms of procedural regulation.

One could thus say that both law and politics (or: governance) consist of a plurality of social or policy fields which primarily are characterised by their internal social dynamics and their continuous operations and evolutions and secondarily by being regulated by law and politics. When the dynamics and the differentiation of these fields become relatively dominant vis-a-vis the regulation, this has to be taken into consideration when attempting to understand the characteristics of governance. Law and politics as parts of governance is then increasingly differentiated. Knowledge- and technologybased fields and economic processes will also often be so normative in themselves that they are exposed directly in the legal processes without much legal or political mediation. They can also express normative, but not legal, regulations as parts of the fields themselves, in the form of various professional, social, ethical etc. internal guidelines.

In Teubner�s words: �globalization breaks the links between democratic politics and law�. [122] Centralized politics and legal-politico sovereignty are replaced by new forms of governance based on a multiplicity of social discourses and environments where law and politics are included. This obviously represents some problems for democratic politics and for the legitimacy of law and politics. Teubner maintains however that the possibilities of going back to the old forms of sovereignty are non-existent. Heterarchy via decentralized forms of knowledge, social discourses and related practices cannot be overcome by politics. Science, technology and economics have become such comprehensive, specialised and differentiated structures that they cannot be fully �represented� by politics or law. They have also become normative in themselves, and in many cases they develop so fast and specialised that political or legal transformations would be inadequate. They will rather act autonomously and directly to law. Or the normative elements within the social discourses are considered sufficient forms of normative expectations, and legal-normative expectations unnecessary. The previous problems of centralized politics are replaced by new problems of selfdestructive tendencies of colliding, uncoordinated and decentralized discourses. [123] Teubner does not reject the relative role of politics and law as two of several communicative systems being environments for each other, but he insists on emphasizing the fundamental facts of social and communicative differentiation and their dominant role also as parts of governance, and thus a lesser role of traditional politics in governance. He also argues that in such a situation social integration can only be achieved by applying differentiation on all communicative levels.

The close symbiosis between the social subsystems to be regulated and legal semantics opens up for a deeply differentiated law. Legal categories, the balancing of considerations, the configurations of justice and what is considered proportionate and appropriate will vary with the quality of the objects and areas of regulation. It cannot be put into boxes of general or unitary principles of legal regulation. The answer to social differentiation is unavoidably legal differentiation produced by the increased variety of sources of law. [124] If one studies the various forms of public law regulation or different areas of contract regulation, the variety of concepts used as parts of the balancings within fairness, proportionality, justice and within the different formations of procedures will be obvious. There has evolved a substantial differentiation between different legal fields with specific doctrinal structures and meanings of concepts and words. [125]



From centralized to decentralized integration and legitimacy

The main effect of Teubner�s theories is that he is trying to draw attention to the multifaceted forms of capillary or micro-political power relations in society connected to the practices of science, knowledge and economy, and then how these micro-political forms of power also invade and influence the legal discourses. They do this by being factual or social assumptions in the areas regulated by law. Changes in the social configurations and their processes will often change the preconditions for legal regulation (what type of normative expectations or norms which may be adequate) and what assumptions it is built on. These forms of power are often local, self-referential and specialized. There are difficulties in governing them centralized or from above in direct ways. The keys to more decentralized forms of governance which also have democratic elements, might be: - an understanding of the internal dynamics of the systems and discourses, and - the creation of structural couplings and linkage institutions which select and give a preference to the democratic elements of the internal structures.

����������� This could however be much further evolved than Teubner so far has done. Partly there is need for research into the internal dynamics of the different systems and discourses in order to reveal their specific characteristics, and what their democratic qualities may be. Partly there is a need for research on how forms of procedures and organisations may be diversified, including how processes on micro- and macro-level might be combined. This would also be in terms of their various democratic qualities. Variations in the forms of negotiations, mediations, consensus conferences, reference groups, arbitration and discussion-groups must be explored in order to create linkages and interferences between the different systems of communication and between the different levels of organisation mentioned.

����������� Democracy on a societal level can not any longer bear the burden of carrying legitimacy alone. Legitimacy will also depend on the degree to which a system or sub-system is allowed to function socially via its internal dynamics, and to what degree these internal dynamics are selective towards democratic elements. The legitimacy of law can then no longer be judged solely by universal standards of democratic legislation. It must also be judged by the abilities of law to function communicatively on decentralized levels, that is: - in each specific sector or social sub-system.

����������� The interplay between multiple social systems, sub-systems and discourses contributes to complexity and to what may be seen as intransparency and a resulting contingency. The complexity of the interplay is created by the combinations of several systems with high degrees of internal differentiation. Such combinations and complexities are necessary and unavoidable in modern societies. They open up for multiple variations of selections. The equally unavoidable cost is however contingency, as part of the selections. Structural couplings, interferences and co-evolutions are created in order to enable and in some cases construct institutional environments for the selections and the interplay between the systems. The systems and discourses are linked, but without destructing their specific rationalities and codes, and thus their functions.




Foucault: The powers of sovereignty and disciplines

Michel Foucault has a discussion of law and modernity with many elements resembling Luhmann�s theories of functional differentiation. The forms of political and legal power preceding modern societies were founded on the powers of sovereignty in the form of the sovereign, most often identified with one person. It was authoritarian, intransparent, monolitic and hierarchically organized. The processes of modernity created a new sense of the individual with freedom and independence vis-a-vis the sovereign. Over time the institutions of freedom rights for the individuals and democratic and parliamentary processes evolved. Politics and law have from then on been based on rights and democracy. They are however still forms of sovereign power in so far as sovereign power is conceived of as some form of monopoly of governmental power territorially defined and delimited as in the nation state. [126] The monarch has been exchanged with the parliament, but the parliament still has the monopoly of legalistic power within the boundaries of the nation-state. The feudal types of sovereignty were general mechanisms of power meaning that all or most forms of social power were transformed via the sovereign, and that the power of the sovereign encompassed �the totality of the social body�. [127] Power was a relationship between the sovereign and its subjects. The bodies of knowledge would for example often operate via the sovereign and its recognition. The parliament as sovereign decomposes the sovereign and opens up for internal differentiations and pluralism from within on quite a different scale than the sovereign monarch did. With the processes of the functional differentiation of modernity beginning in the seventeenth and the eighteenth centuries other and more specialized procedural techniques based on the evolution and specialization of knowledge have emerged and gained in strength as forms of social power. Foucault designates such techniques as disciplines or disciplinary power. [128] They operate in different ways and are totally incompatible with the forms of sovereign power of law and politics. The disciplines are closer attached to �the body� and to more direct and physical forms of surveillance than the forms of sovereign power and do thus have a much more direct access to the objects regulated. They speak different languages and function socially in different ways. The disciplines are knowledge-producing apparatuses, and the elaboration of the forms of knowledge would be their language.

The power of rights is creative via the granting of rights for the individual and repressive via the state�s practices. The power of the disciplines is creative via the evolution of knowledge and the individuals performing it and repressive via its structures, its direct access to the objects and its disciplining and �normalizing� forms.

In Foucault�s judgement the disciplines are over time increasing their social powers vis-a-vis those of rights and sovereignty. The disciplines evolve to some extent in more pluralistic, anarchistic and open ways than the forms of the sovereign. They can not be controlled by one person or one social body. They are on the other hand more intensive and closer integrated into the bodies, the work and the lives of the individuals. When they emerge in generalized and accepted forms, they can be repressive in more intransparent ways than democracy and rights. The questions concerning whether and how such disciplines function in more or less repressive (or emancipating) ways are however debatable and highly controversial. It may be argued that some of the disciplines are both emancipating and repressive, emancipating because they replaced previous repressive structures and repressive because new structures are created. Old and new structures may be difficult to compare because they are part of different contexts. Some of the new disciplines have become institutionalized and densely integrated into many of the vital social and infrastructural spheres of modern societies. They are in many ways almost inseparable from other social elements of the areas. Because the disciplines are so close to the core of the integration of the social body in modern societies, they may be difficult both to distinguish and to evaluate as such, and thus also as forms of power.

By the uses of rights and democracy the sovereign forms of power have been reformed and have thus also kept their position as the major legal institutions. The juridical systems and democracy have reenforced each other and thus enabled changes of the forms of sovereignty from totalitarian to more pluralistic, transparent and open. Together they have established forms of a public right carrying the legitimacy of both rights and democracy. [129] The democratization of sovereignty has however evolved in interaction with the evolution of knowledge and functional differentiation. Knowledge and disciplinary mechanisms, and thus also their power, have then been taken into use via forms of public rights by the sovereign institutions. The disciplines have then contributed to modernisation of the institutions of sovereignty. At the same time sovereignty and public right have been used to make the functioning of the disciplines more efficient and also to disguise their forms of power by providing them with a legal basis as parts of public rights. In Foucault�s view vital forms of the present public rights are in reality disguised forms of disciplinary power.

So even if these forms of power are incompatible and heterogeneous, they are also linked to and have become deeply interdependent of each other. The disciplines assure the cohesion of the social body in complex modern societies. Public right and democracy deliver legitimate and legal forms articulating the same. Their interdependence is evident, but exactly how it functions may seem intransparent. They do however meet in perpetual exchange and interaction rather than identify. The disciplines have their own discourse and are not as such dependent on the sovereign forms of power, but essential parts of their effects come from using the forms and the articulations of public right. Foucault sees the forms of sovereignty and right and of the disciplines as the two main arenas where and through which social power is exercised in modern society. It is however vital that the exercise of disciplinary power occurs in the disguised forms of law. In many areas such as health, education, penal affairs it is at their intersection that the two forms of power have their most comprehensive potential. In Foucault�s view the disciplines and their discourses are invading and even colonizing the area of law and rights in spite of their incompatibility. The rights do however add something to the social configuration and practices of the disciplines, beyond the disguising and the legitimacy they may confer, but which is not at all clear.

Foucault has an equivalent analysis on the role of political economics vis-a-vis the state � where the techniques of political economics are dominating and disciplining the structures and the processes of the state away from an art of government and into a political science. The new forms of government evolves into a governmentality where the disciplines of political economy and science combine and rule, and where the population becomes a datum for intervention and objectives for governmental techniques. [130] The ensemble of state institutions, procedures and reflections are then nothing more than a field for exercising the disciplines of political economy and where the population is the object of the exercises. The advantage of the institutions of government is the potentials for gathering whole complexes of forms of knowledge.��

����������� Foucault insists that both the disciplinary and the sovereign forms of power are repressive albeit in different ways. Disciplinary forms of power cannot, he maintains, be absolved by a refuge to the legal and sovereign forms of power. His very vague suggestion is whether it might be possible to construct a new form of public right different from both disciplinary and sovereign forms of power which he sees as inherently repressive. [131] It is however quite unclear how and whether we can see such forms emerging. Part of it may be new and emerging forms in association with the ideas of civil society and a public sphere, non-attached to the sovereign, such as new collective rights such as speech, information, gathering etc.

���������� �� It may seem that there are vital similarities in the theories of Luhmann, Teubner and Foucault regarding law. They have all observed changes due to the processes of social differentiation and the evolution of knowledge with increasing specialization and the consequences this has for the forms and intensities of social power. This leads to a growth of apparatuses and forms of knowledge and to their specialization. It is self-evident that the regulation or control of such forms of socially dispersed, capillary and micro-political forms of power become rather complex. Law is then led into the role of the proceduralizer and organizer. Still however there remains the questions of congruity between the social processes, the disciplines and law and the corresponding need for further research.

����������� It should however be clear that Foucault�s description of the disciplines must lead to a much more pessimistic view regarding the possibilities of using various forms of reflexive law as procedural mechanisms in order to influence the disciplines into more democratic and transparent forms. Foucault does not see any role of knowledge outside �normalisation�. Luhmann does not enter into the discussion of the more qualitative effects of knowledgebased discourses and their power. He primarily observes them.



VI.Conclusions: Modern law as evolving from knowledgebased discourses and practices

Both the theories of functional differentiation and of social systems of Luhmann and of the disciplines and discursive formations of Foucault are founded on observations of the increasingly intensive and capillary roles of knowledge, and its diverse communicative formations and applications. Both theories assign this element a primary role in the evolution of modernity and functional differentiation of society. All our social activities are somehow part of collective practices of systematizing experiences and knowledge. From these practices arise discursive or argumentative formations and more elaborate forms of knowledge, disciplines or sciences. Modern societies are then permeated by such discursive and often knowledgebased formations which constitute micro-political, and often rather intransparent, forms of power. Practices, disciplines, knowledge, science, discursive formations are concepts which in Foucault�s terminology designate varieties of systematization of knowledge. [132] Luhmann on the other hand uses social systems as the most general category. Within this general category there are then different levels of social generalisation where social functions are the most general, followed by the levels of organisations and interactions. [133] These are all social systems characterised by a specific code. Within that code there may also be new variations of patterned or clustered forms of communication such as specific semantics, programs or themes.

One could thus say that modern society consists of several levels of collective processes of communication: - general systems (functions) of communication (such as law, politics and science), - knowledgebased discourses, disciplines, sciences and practices within specific fields or social areas (organisations, semantics and programs, more or less, in Luhmann�s terminology), - and the specific and local situations of argumentation and communication (interactions in Luhmann�s terminology). Meaning will thus be produced within several types of formations of social communication.

Any area which is, or which is to be legally regulated, are part of such discursive social formations. There will thus be a discursive and meaningbased formation of the area previous to the legal regulation of it, or having evolved more or less simultaneously with and influenced by legal norms. In many areas of modern societies legal regulation, and its concepts, have become vital and structuring parts of their discursive formations. Examples could be: - labour law, its regulation of collective bargaining and the relations between the labour market parties, and � petroleum law and its organisation of the exploration and the production of petroleum by the use of legal definitions of oil-fields, pipelines, concessions, participants, consession groups etc. The general principles of administrative law and its regulations on information and transparency are also structuring and defining parts of public administration.

With the increasing functional differentiation and internal specialization the social systems to be regulated are already increasingly internally structured with autonomous dynamics. Knowledgebased fields often have considerable social and discursive autonomy and may also already be permeated by normative elements of their own created by their internal processes to which legal regulation will have to adapt or observe if it is to be effective. In Teubner�s words: ��there must be a close symbiosis between the existing social discourse and the attempt of legal regulation�. [134] Such areas are already regulated via knowledge and discourse practices in ways which may show significant resistance to external regulations, such as law. Teubner�s formulations on how law has delegated part of its normative task to other ongoing argumentative practices or social discourses, is relevant also to our various conceptions of �justice� and �proportionality�.

The focus on social and communicative differentiation, and its increasing intensity and resulting specialisation, leads to an increasingly radical focus on the local and decentralized levels of communication, their dynamics and how local practices and knowledge evolve continuously. The processes of specialisation and differentiation will over time lead to continuous co-evolutions among the various communicative systems and thus the production of new and more specialised systems, sub-systems, new interferences and couplings on the local levels. The general and functional levels of communication will then emerge as increasingly internally differentiated. It has been argued here that these continuous processes of internal differentiations and the creations of new co-evolutions and sub-systems indicate that the systems evolve and change communicatively and continuously as operations on the local and micro levels. This also implies that local dynamics in the forms of knowledge and practices are vital for how communicative systems on all levels emerge and change. It also means that changes on the more general levels of communicative functions and organisations first occur as micro-level operations and on the level of interaction. That is that even if these changes also evolve within the general frameworks of the functions of law, politics, science etc., they will also emerge as continuous evolutions and changes in the forms of local and capillary operations on the levels of organisational and interactive systems. Co-evolutions also on the local levels will also play a great role in the evolution of new systems. If focus is changed from the general function to the local operations and thus the continuous and capillary change occurring on several levels at the same time, both the micro-levels and those of the more generalised functions, our whole notion of the general functions may change � from a more static notion to one of continuous evolution and change, and thus also a more destabilized and open notion of such key concepts. It has also the consequence that we must be much more careful in our application of the various assumptions to which such concepts and codes often are attached. There may then be a need of openness and more continuous re-interpretations.

The focus on the level of operations and on the evolution of new co-evolutions, couplings and hybrids on the levels of organisation and interaction may then have consequences for our descriptions and analysis of current forms of law, politics and governance. If the primary social dynamic is on the level of operations, we will have to emphasize the dynamical, new co-evolutions and new sub-systems also as more distinct aspects of the evolution of the general social functions. At the same time it could be argued that on the local levels knowledgebased discourses and practices would be the vital structuring dynamics, and that the general functions and codes would be secondary or: second order observations. Ifthe general functions evolve via local changes and local sub-systems and co-evolutions, then we may get a more precise picture of these changes by focussing on the local levels and on the changes of the knowledgebased discourses. This may also lead to an argument for analyzing society and governance primarily as social and local systems or discourses based on knowledge and practices, and not primarily regard new events and changes as continuations of the general functions of for example law and politics. Such a strategy should give a better focus on the nature of social changes and help avoid the pitfalls of outdated assumptions of key concepts and their social references.

The argument is then to regard events referring to organisational and interactional levels as specific social systems which should be analyzed by themselves as local and as based on knowledge and practices, and then later as to what they might contain of political or legal (more general) semantics. This would also imply a focus on the new co-evolutions and hybrids evolving among the functional systems.

Governance could thus be studied as consisting of several specific (policy) fields with various combinations and forms of co-evolution of knowledge, technology, politics, economics and law. The primary interest would then be on what seem to be the specific dynamics and qualities of each field irrespective of previous or original social functions and on the relations of the various social systems involved. A vital argument for this is that it would enable us to see more clearly the changes occurring also within the general social functions and some of the vital qualities of these changes. This would be in contrast to assuming the continued and static existence of the general functions, and their often implicit social assumptions.


The changing argumentative rationality of law

Legal argumentation is often done relying on the meanings of various traditional or presumed reality constructions, values and key concepts, including the implicit assumptions of these. The analysis given above on how communicative systems and thus also meaning formations change, in our time, implies that we will often refer to reality constructions and concepts and their assumptions without being sufficiently aware of their possible changes. This should induce us to give some more attention as to how we assume the meanings of the concepts and the arguments we use, and how we then understand and construct our argumentations in law.

The locally embedded processes of change of the social systems and the local forms of co-evolution may contribute to continuous, even if incremental, processes of change also of the meanings of the general functions, key concepts, normative patterns and meaning formations which we use. The continuous and incremental character of these changes mean that they will often be difficult to observe. With the focus on change and co-evolution and not on static concepts and systems it may also at times be unclear and intransparent what the meanings of the codes of the functions, the normative patterns or the decisive arguments within a specific system are. The implication of this is that we will have to pay closer attention to what we at any time nominate as the specific and discursive patterns of argumentation or the decisive arguments within a social field or a social system, and what meanings we confer on them, and not reproduce the received interpretations or the given assumptions of the key argumnets and concepts. [135] This would be relevant for lawyers both as legal participants and as observers or analyzers of a specific field. Continuous change means that we will have to pay closer attention to the changes of meaning in vital concepts, and then how we select, understand and qualify our argumentation at any time.

Changes in argumentative patterns, in the contents of vital concepts and the need of attention to this is of course not new. It could however be argued that changes in argumentation are affected by the increased speed and comprehensiveness of changes more generally in society. The accumulated application of new and specialised technologies (and konwledges), the nature of some of these technologies and the much faster turnover and production of information are some of the most basic factors behind this. These factors could lead to more comprehensive and frequent, even if incremental in form, changes also in some of our more basic reality constructions, value assumptions, key concepts and thus also more general normative patterns.

The application of specialised technologies, including the mutual side-effects of their simultaneous uses, are also leading to uncertainties and risks in slightly different ways than previously. New technologies incur so many different selections and thus side-effects that it is almost impossible to control these fully on an experimental stadium. We know that there may also be unpredictable consequences, some of which may be far into the future, possibly significant and impossible to control for. Technologies and knowledge are thus applied en masse with the knowledge of also extreme and significant risks. Luhmann has phrased this so that we are now systematically and comprehensively drawing upon the future and on the global scale in our actions more than we have ever previosuly done, in conscious ways. [136] The accumulation of risks taken by human decisions are more significant than ever, and some of them concern the future more than ever. The implication of this in combination with the arguments above is that increased attention to our patterns of and specific forms of argumentation is vital also because there may be very significant and comprehensive social changes due to our application of new technologies. One problem here is that the concepts we know and use may not be sufficiently expressive of these risks or of how we at all think about or try to evaluate them.

These aspects are most of all relevant in areas of health, food production and the environment where knowledge and technologies are applied which are extremely specialized, involve multiple decisions and selections and thus also contingency and reflexivity as parts of the decisionmaking. When several specialized technologies are applied in combinations, the redundancy of consequences might be impossible to control or to predict in any kind of way and may thus produce several unintended side-effects when applied. The possibilities ofextremely negative consequences might be small, but also inherent and unavoidable. Regulatory law will also have to deal with the balancing of very incompatible elements: - the possibilities of comprehensive and �negative� ecological risks on the one hand, and � the �positive� potentials of increased food-production or economic growth on the other, both of course being socially constructed, parts of discursive formations and uncertain predictions. Specialized knowledge bring with it an increased reflexivity and thus also contingency and a structural uncertainty on a previously unknown scale in many fields. [137]

Law will thus have to learn to deal with increased specialisation and reflexivity and their side-effects of uncertainty and risk. The argument here is that this also necessitates an increased attention on our parts as lawyers as to how we select our arguments and our patterns of argumentation in each case because of the uncertainty brought in by the reflexivity.

Social meaning is created through and embedded in language. With processes of increased specialisation the discursive processes may also become increasingly reflexive and autonomous. This may make the processes more unreachable and less understandable for those outside the specialists� circles. Another aspect of this is increased pluralism and competition among the social discourses, for example among various knowledgebased discourses or between various political proposals for problem-solutions. This may increase the employment of strategic, ideological and rhetorical modes, and thus also the reflexivity and contingencies within formations of communication. How we use language and create discourses, is thus increasingly influenced by several types of rationality and then becoming increasingly complex and intransparent. [138]

In some areas these problems are more urgent than in others. In the areas of health and environment, which are fundamental to us, the new bio- and gentechnologies create on the one hand possibilities and on the other hand dangers which are so immense and extreme that we may have problems understanding their scope, and thus also conceptualizing and evaluating them. Deciding over changes in the genetic pools of plants, animals and in ourselves and over life and death of specific individuals in critical situations represent anew scenery for human decisionmaking. [139] Previously such situations have been much more induced by natural catastrophes. Now they are created more directly by decisions by human beings, and some of these decisions have the potential of enormous consequences. We simply do not have neither the cognitive nor the sensitive or the normative abilities to communicate about these areas sufficiently precisly � in order to be sure that we can make sufficiently sustainable and sensible decisions. The cognitive communications in some of these areas are extremely specialised and complex and will unavoidably involve elements of non-knowledge. Another part of this are the difficulties of having to balance considerations of risks, including uncertain and possibly negative consequences, with the potential of positive and vital resources. Some of these risks also involve ethical questions concerning life or death or the lives of new generations rather than ours. Here we are clearly on the borders of what we are able to argue about in more rational ways. The normative regulations and argumentation must unavoidably involve even further reductions of the complexity of the relevant communications. When the semantics of such an area is transferred from a cognitive to a normative-legal form, we may exclude some of the properties on the way. It may be impossible to know whether the most relevant or vital arguments are included along the way. There are then unavoidable reductions of the complexities of the cognitive or the ethical argumentations when transformed to the normative and also unavoidable uncertainties as to how vital these reductions are.

The vital point here is that at one and the same time the uses of language are becoming more ambiguous (hiding incompatibilities in the language) and also increasingly and deeply decisive in our creation of social reality. How we choose to describe certain facts, how we select our arguments � from the several possibilities, may become very decisive for any further evolution both cognitively and semantically. When dealing with several competing discourses in one and the same field or case (economic, biotechnological, ethical, food-production etc.), the meanings of each discourse and the balancings between them may become intransparent and difficult to perceive of sufficiently. The balancings may also be so incompatible that comparisons seem difficult to make in a rational way. The regulation of the application of biotechnologies is also dependent on how the technologies and their risks have been described, conceptualized and evaluated. That is: how we choose to describe the various risks involved. The definitions of who qualifies to be asylum-seekers and refugees are an other example. There is no objective way of defining what a refugee or a right of asylum should be in the world we live in now. The legal concepts are results of both reductions ofembedded complexities and constructions of the relevant situations including strategic arguments, post-hoc needs of legitimacy and unavoidable elements of contingency. The combinations of increasingly specialised uses of language and the increasingly strategic and rhetorical uses of the same language may result in spiralling tendencies of reflexivity. [140]

It is however beyond the abilities of law to transcend such a situation materially. Law will have to learn to deal with more pluralistic, changing and complex situations � also the ambiguities of incompatible and colliding interests. One reaction to this would be to include the knowledge of complexity and ambiguities in our learning processes and thus to become more �realistic� as to what we do in our selections. Another reaction would be to create and to learn to apply increasingly pluralistic procedural forms � adapted one the one hand to the internal and complex dynamics of the social systems, and on the other to our collective needs of transparency, deliberation and democracy � and also of normative expectations. Law should not only proceduralise self-organization, but also open up for references to the social discourses involved in forms which would allow for processes of deeper and more public and transparent reflections over the collisions involved also of ambiguous principles and interests � even if we know that the results may contain vital uncertainties, incompatibilities and ambiguities.






Changing forms of governance and the role of law.............. 1

Introduction............... 1

Society and its law: - changes in the conditions of law and politics in society..... 2

Introduction to politico- and socio-legal theories of communicative differentiation.............. 5

Changes in the social structure: - Challenging the forms and the functions of law.......... 8

Knowledgebased discourses, new technologies and risk. 13

Theories of the evolution of law and the legitimacy and the relations of law and politics... 19

New socio-legal theories: Communication, discursive and systems theory.... 28

Habermas� normative theory of law............. 33

Luhmann on law and politics... 39

Summary of Habermas and Luhmann: Law as the combination of relative stability and flexibility. The interdependency of law and politics............. 40

Luhmann`s sociological theory of law............. 43

Systems of communication: normatively closed and cognitively open...... 43

Normative and cognitive expectations: the role of knowledge and learning processes 47

Globalization and risk: extensions of law in time and in space............. 50

Teubner: - The adequate social complexity of law. Reflexive law............. 52

From social to legal differentiation............ 60

New forms of governance: Closer ties between law, science, economy and politics............. 60

From centralized to decentralized integration and legitimacy 63

Foucault: The powers of sovereignty and disciplines 65

Conclusions: Modern law as evolving from knowledgebased discourses and practices

The changing argumentative rationality of law.... 68




[1] Niklas Luhmann, �Das Recht der Gesellschaft�, 1993, ch.1.

[2] Anthony Giddens �The Reflexivity of Modernity� in �Consequences of Modernity�, Stanford University Press, 1990.

[3] Niklas Luhmann, �Risiko und Gefahr�, in �Soziologische Aufkl�rung 5�, Opladen, 1990a; Ulrich Beck, �Risk Society�, Sage, 1992, ch. 1 and 2.

[4] Michel Foucault, �Two Lectures� in �Critique and Power�, ed. Michael Kelly, MIT Press, Cambridge, 1994.

[5] Markus Jagtenfuchs and Beate Kohler-Koch, �Regieren in dynamischen Mehrebenensystemen� in �Europeische Integration�, Opladen, 1996; Deirdre Curtin, �Postnational Democracy�, Kluwer, 1997; Karl-Heinz Ladeur, �Towards a Legal Theory of Supranationality�, European Law Journal, no.1, vol.3, 1997 A; Inger-Johanne Sand, �Understanding the New Forms of Governance: - mutually interdependent, reflexive, destabilised and competing institutions�, European Law Journal, no.3, vol.4, 1998.

[6] Gunther Teubner, �The King�s Many Bodies�, Law and Society Review, 1996.

[7] Niklas Luhmann, �Law as a Social System�, Northwestern University Law Review, vol.83, no.�, 1989.

[8] Niklas Luhmann, �The Differentiation of Society�, 1981; �Soziale systeme�, 1984, �Das Recht der Gesellschaft�, Suhrkamp, 1993.

[9] Niklas Luhmann, ibid., 1984, ch.2 and 11; and �A Sociological Theory of Risk�, Berlin, de Gruyter, 1992, ch.8 �Demand on Politics�, p.147, 151 flw.

[10] Michel Foucault, �The Archeology of Knowledge�, London, Tavistock, 1972

[11] Michel Foucault, ibid., 1972; Ernesto Laclau, �New Reflections on the Revolution of Our Time�, London, Verso, 1990.

[12] Niklas Luhmann, ibid., 1993, ch.1.

[13] Gunther Teubner, �Reflexives Recht�, Archiv f�r Recht- und Sozialphilosophie, vol. LXVIII, no.1, 1982.

[14] Niklas Luhmann, ibid., 1984, ch.1, 2 and 5.

[15] Niklas Luhmann, ibid., 1984, ch.10.

[16] Gunther Teubner, ibid., 1982, and Niklas Luhmann, ibid., 1984, ch.11.

[17] Michel Foucault, ibid., 1972; Niklas Luhmann, �Das Wissenschaft der Gesellschaft�, 1990; Ulrich Beck, �Risk Society�, 1990, ch.1 and 2.

[18] Niklas Luhmann, ibid., 1993, p.555.

[19] Inger-Johanne Sand, ibid., 1998.

[20] Niklas Luhmann, ibid., 1990a.

[21] Markus Jagtenfuchs and Beate Kohler-Koch, �The Transformation of Governance in the European Union�, 1996.

[22] Niklas Luhmann, �Risiko und Gefahr�, 1990.

[23] J�rgen Habermas, �Between Facts and Norms�, Cambridge, Polity Press, 1996, ch.9.3 (in German �Faktizit�t und Geltung�, 1992); Niklas Luhmann, ��kologische Kommunikation�, 1986, ch.11.

[24] Niklas Luhmann, ibid., 1993, ch.9.

[25] There are predictions that the performativity and the flexibility of law pr. definition are able to handle any kind of complexities.

[26] Gunther Teubner, ibid., 1982.

[27] J�rgen Habermas, �Postscript� in �Between Facts and Norms�, 1996.

[28] Philippe Nonet and Philip Selznick, �Law and Society in Transition. Towards a Responsive Law�, 1978; Gunther Teubner, ibid., 1982, Boaventura de Sousa Santos, �Towards a New Common Sense�, Routledge, London, 1995, ch.2.; Helmut Willke, �Die Ironie des Staates�, Suhrkamp, Frankfurt, 1992, ch.2; Niklas Luhmann, ibid., 1993, ch.3 and 6.

[29] Boaventura de Sousa Santos, ibid., 1995, p.72-76.

[30] Boaventura de Sousa Santos, ibid., p.77-81; Gunther Teubner, ibid., 1982; Colin Gordon, �Governmental Rationality�, in �The Foucault Effect�, ed. Burchell, Gordon and Miller, Harvester, Wheatsheaf, 1991; Vilhelm Aubert, �Continuity and Development�, Oslo, Scandinavian University Press, 1989.

[31] Helmut Willke, �The Tragedy of the State�, Archiv f�r Rechts- und Sozialphilosophie, 1986.

[32] Helmut Willke,ibid., and Michel Foucault, �Governmentality� in �The Foucault Effect�, ed. Burchell et al., 1991.

[33] Vilhelm Aubert, �From the rule-of-law to the promotional function of law� in �Dilemmas of law of the Welfare State�, eds. Terrence Daintith and Gunther Teubner, de Gruyter, Berlin, 1986.

[34] Gunther Teubner, ibid., 1982, p.39; Boaventura de Sousa Santos, ibid., 1995, pp.78-81; Niklas Luhmann, ibid., 1993.

[35] One illustration of this may be two recent cases in the Norwegian Supreme Court on changes in the state old age pension systems, and to what degree regulations may be changed due to economic considerations, cfr. Norwegian law review, Rt.1996/1415 and 1440 flw.

[36] Gunther Teubner, ibid. pp.48 flw., 1982.

[37] Niklas Luhmann, ibid., 1993, and J�rgen Habermas, ibid., 1996.

[38] J�rgen Habermas, ibid., 1996, p.431-443, Luhmann, ibid., 1993, ch. 1 and 12.

[39] J�rgen Habermas, ibid., 1996, ch.4.2.3 and 7.1.

[40] Niklas Luhmann, ibid., 1993, ch.9; Gunther Teubner, �De collisione discursum�, Cardozo Law Review, 1992.

[41] J�rgen Habermas, ibid., 1996, p.430; Niklas Luhmann, 1993, ibid., p.417-420, 431.

[42] Niklas Luhmann, ibid., 1993, p.555, 582.

[43] J�rgen Habermas, ibid., 1996, p.450.

[44] Gunther Teubner, ibid., 1982.

[45] J�rgen Habermas, �Theorie des Kommunikativen Handelns�, b.I, Frankfurt, Suhrkamp, 1981, ch.II.4; and ibid., 1996, p.25 flw.; Niklas Luhmann, ibid., 1984, ch.1 and 5.

[46] J�rgen Habermas, ibid., 1996, ch.9.3 and postscript.

[47] Niklas Luhmann, ibid., 1993, ch..1.

[48] Niklas Luhmann, ibid., 1993, p.25-33.

[49] Niklas Luhmann, ibid., 1993, p.35-37.

[50] Gunther Teubner, ibid., 1982, p.39 flw.

[51] Gunther Teubner, ibid., 1982.

[52] Gunther Teubner, ibid., 1982, p.48 flw.

[53] Gunther Teubner, �Global Buowina: Legal Pluralism in the World Society�, in �Global Law without a State�, ed. Teubner, 1997, p.14.

[54] Michel Foucault, �Two lectures�, in �Critique and Power�, ed. Michael Kelly, MIT Press, Cambridge, Mass., 1994, p.40-45.

[55] J�rgen Habermas, ibid., 1996, p.25.

[56] J�rgen Habermas, ibid., 1996, ch.1, 1.2.5, p.26-27 and 2.1, p.56.

[57] J�rgen Habermas, ibid., p.73-76.

[58] J�rgen Habermas, ibid., ch.1, 3 and 6.3.

[59] J�rgen Habermas, ibid., ch.4.2.1, p.151.

[60] J�rgen Habermas, ibid., ch.4.2.2, p.157-168.

[61] J�rgen Habermas, ibid., ch.5.3.3.

[62] J�rgen Habermas, ibid., ch.7.1.2.

[63] J�rgen Habermas, ibid. p.448 flw.

[64] Gunther Teubner, �De Collisione Discursum�, 1996.

[65] J�rgen Habermas, ibid., 1996, p.451.

[66] J�rgen Habermas, ibid.p.461.

[67] J�rgen Habermas, ibid.pp.39-40, 448-450.

[68] Gunther Teubner, ibid., 1996

[69] Gunther Teubner, ibid., 1996, p.431.

[70] Gunther Teubner, ibid., 1996, p.162, 565-568.

[71] Gunther Teubner, 1982, p.39.

[72] Niklas Luhmann, 1984, ch.1, II, no.4.

[73] Niklas Luhmann, ibid., 1984.

[74] Niklas Luhmann, ibid., 1984, ch. 5 and 10; Gunther Teubner, �Social regulation through reflexive law�, in �Law as an Autopoietic System�, Oxford, Blackwell, 1990.

[75] Niklas Luhmann, ibid., 1984, ch.1, II, no.7; ibid., 1993, p.14-15.

[76] Niklas Luhmann ibid., 1993, pp.15-17, 27-37.

[77] Niklas Luhmann, ibid., 1984, ch.4.

[78] The term �generalized media of communication� was used by Niklas Luhmann in his previous works. When he engaged in autopoietic and systems theory in the book �Soziale Systeme�, 1984, he started using the term �social systems� as the designation for communicative and social. cfr. ch.1 and 5.

[79] Cfr. Michel Foucault, �The Archeology of Knowledge�, 1972.

[80] Niklas Luhmann, ibid., 1984, ch.1, II, no.9.

[81] Niklas Luhmann, �A sociological theory of law�, 1972/1981, pp.78-83.

[82] Niklas Luhmann, 1993, ibid. ch.1.

[83] Gunther Teubner, ibid., 1982, p.49.

[84] Niklas Luhmann, ibid., 1993, pp.195-206, 278-279, 389-402, 415-420.

[85] See among many others the contributions in �Dilemmas of Law in the Welfare State�, ed. Gunther Teubner, de Gruyter, Berlin, 1986, �Contract and Organization�, ed. Terrence Daintith and Gunther Teubner, de Gruyter, Berlin, 1986; Gunther Teubner, ibid., 1982.

[86] Gunther Teubner, ibid., 1982.

[87] Niklas Luhmann, ibid.,1993, p.557 flw.

[88] Niklas Luhmann, ibid.,1993, p.555.

[89] Niklas Luhmann, ibid. p.555.

[90] Niklas Luhmann, ibid. P.577-585.

[91] Ulrich Beck, �Risk Society�, 1990, ch.1 and 2; and �World Risk Society�, 1999; Niklas Luhmann, �A Sociological Theory of Risk�, Berlin, de Gruyter, 1992.

[92] Inger-Johanne Sand, �New forms of environmental law: - the lega� regulation of scientiifc constructions�, ARENA workingpaper, 2000.

[93] Niklas Luhmann, ��kologische Kommunikation�, 1986, ch.11 �Recht�.

[94] Niklas Luhmann, ibid., 1993, p.560-562.

[95] Niklas Luhmann, �Risiko und Gefahr�, 1990.

[96] J�rgen Habermas, 1996, ibid.; Niklas Luhmann, 1993, ibid.

[97] Gunther, Teubner, ibid., 1982, p.39.

[98] Gunther Teubner, ibid., p.46.

[99] Gunther Teubner, ibid., p.48.

[100] Gunther Teubner, ibid., p.49-50.

[101] Gunther Teubner, ibid., p.56-57.

[102] Gunther Teubner, �Social Regulation through Reflexive Law�, 1993.

[103] Gunther Teubner, ibid., 1993, p.65 flw.

[104] Gunther Teubner, ibid., 1993, p.78-81.

[105] Gunther Teubner, ibid., p.65.

[106] Gunther Teubner, ibid., p.77.

[107] Gunther Teubner, ibid., p.82.

[108] Gunther Teubner, ibid., p.83-86.

[109] Gunther Teubner, ibid., p.95-97.

[110] Gunther Teubner, �De Collisione Discursuum�, 1996, p.910; �The King`s Many Bodies�, 1997, p.765.

[111] Gunther Teubner, ibid., 1996, p.903

[112] Gunther Teubner, ibid., 1996, p.912.

[113] Niklas Luhmann, 1984, ch.4.

[114] Gunther Teubner, ibid., 1997, p.769 and 780.

[115] Markus Jagtenfuchs and Beate Kohler-Koch, �The Transformation of Governance in the European Union�, 1996.

[116] Anthony Giddens, 1990, p.70.

[117] Gunther Teubner, ibid., 1996, p.916.

[118] Gunther Teubner, ibid., 1996, p.918.

[119] Gunther Teubner, ibid.

[120] Gunther Teubner, ibid., 1997, p.778.

[121] Gunther Teubner, ibid., p.780.

[122] Gunther Teubner, ibid., p.780.

[123] Gunther Teubner, ibid., p.784.

[124] Gunther Teubner, ibid., 1996, p.915-916.

[125] Gunther Teubner, ibid., 1996, p.918.

[126] Michel Foucault, �Two lectures�, in �Critique and Power�, ed. Michael Kelly, 1994, p.40-45.

[127] Michel Foucault, ibid., p.41.

[128] Michel Foucault, ibid., p.42-45.

[129] Michel Foucault ibid., p.43-45.

[130] Michel Foucault, �Governmentality�, in �The Foucault Effect�, ed. Burchell, Gordon and Miller, Harvester/Wheatsheaf, London, 1991. See also Graham Burchell, �Governmental Rationality: An Introduction�, in Burchell et alia, ibid., 1991.

[131] Michel Foucault, ibid., 1994, p.45.

[132] Michel Foucault, 1972, p.178 flw; Gilles Deleuze. �Foucault�, Minneapolis, University of Minnesota Press, 1988, p.94.

[133] Niklas Luhmann, 1984.

[134] Gunther Teubner, ibid., 1996, p.916.

[135] Karl-Heinz Ladeur, �From the Deductive to the Argumentative Rationality of Law�, in �Law, Interpretation and Reality�, ed. Patrick Nerhot, Kluwer, 1990, p.184.

[136] Niklas Luhmann, �Risiko und Gefahr�, 1990a; and ibid., 1992; Karl-Heinz Ladeur, ibid., 1990, p.191.

[137] Niklas Luhmann, ibid., 1986, ch.11 �Recht�.

[138] Karl-Heinz Ladeur, ibid., 1990, p.190.

[139] Niklas Luhmann, ibid., 1986; ibid., 1992, ch.8 �Demand on Politics�.

[140] Karl-Heinz Ladeur, ibid., 1990, p.192.