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
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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-legal�
theories 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.
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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. 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.
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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. 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. 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.
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. 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.��
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.�����
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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.� 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. 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.
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.
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. 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. 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. 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. 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.
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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. 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.
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. 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.�
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, both� more
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. 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.
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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.
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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.
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.
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.
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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 concepts� and 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. 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
(internal� control) 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.
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.
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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. 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. 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.
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. 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. 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. 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.
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�. 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. 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.
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.
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. 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.
�����������
�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. 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. 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.� 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. It�
is 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.
Habermas
insists that the democratic process bears the entire burden of the
legitimacy of law and politics. 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.
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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.� 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. 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. 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. 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.
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 discourse� theories
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.
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. 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. 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. 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. 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. 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 some� kind
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.
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IV. Politico-legal theories:
Habermas and Luhmann
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.� 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. 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. 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. 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. 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. 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. 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.
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�. 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. 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�. 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.
�����������
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. 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.
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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.
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.
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. 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. 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 legitimatory� aspects 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.
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Luhmann`s sociological theory of law
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. 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. 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. 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. 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. 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. 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. 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. Our communications are part of�
collective 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. 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.
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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.
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. 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). 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. 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. 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.
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. 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.
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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. 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. 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. 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 are� primarily
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.
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. 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. 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.���
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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. 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. 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 the� social 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. 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. 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.
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. 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. 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. 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.
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. 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. The legal and the economic constructions of collective
bargaining are separate, but they also reciprocally�
influence each other in quite close ways. The two processes
are then co-evolutionary, via the exchange of information, and common
occasions and institutions. 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. 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 taking�
part 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. 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. 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. 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. 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.
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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. 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. 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. 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 enhanced�
qualitatively � 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.� 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.
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�. 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. 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. 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�. 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. 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. 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.
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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.
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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. 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�. 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. 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. 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. 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. 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.
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