Luhmann and Socio-Legal Research

An Empirical Agenda for Social Systems Theory

Celso Fernandes Campilongo, Lucas Fucci Amato, Marco Antonio Loschiavo Leme de Barros, Celso Fernandes Campilongo, Lucas Fucci Amato, Marco Antonio Loschiavo Leme de Barros

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000261110
• Edition: 1
• Topic: Jura
• Subtopic: Rechtswissenschaft

This book discusses the designs and applications of the social systems theory (built by Niklas Luhmann, 1927–1998) in relation to empirical socio-legal studies.

This is a sociological and legal theory known for its highly complex and abstract conceptual apparatus. But how to change its scale in order to study more localised phenomena, and to deal with empirical data, such as case law, statutes, constitutions and regulation? This is the concern of a wide variety of scholars from many regions engaged in this volume. It focuses on methodological discussions and empirical examples concerning the innovations and potentials that functional and systemic approaches can bring to the study of legal phenomena (institutions building, argumentation and dispute-settlement), in the interface with economy and regulation, and with politics and public policies. It also discusses connections and contrasts with other jurisprudential approaches – for instance, with critical theory, law and economics, and traditional empirical research in law. Two decades after Luhmann's death, the 21st century has brought countless transformations in technologies and institutions. These changes, resulting in a hyper-connected, ultra-interactive world society bring operational and reflective challenges to the functional systems of law, politics and economy, to social movements and protests, and to major organisational systems, such as courts and enterprises, parliaments and public administration. Pursuing an empirical approach, this book details the variable forms by which systems construct their own structures and semantics and 'irritate' each other.

Engaging Luhmann's theoretical apparatus with empirical research in law, this book will be of interest to students and researchers in the field of socio-legal studies, the sociology of law, legal history and jurisprudence.

Chapter 1

An empirical agenda for social systems theory?

Lucas Fucci Amato, Marco Antonio Loschiavo Leme de Barros, and Celso Fernandes Campilongo

Introduction

Niklas Luhmann (1927–1998) started by studying the problems of public administration, bureaucracy and organisation and ended by providing a highly abstract and far-reaching theory of society and many of its subsystems – politics, religion, art, education, science, economy and the law. This is certainly not a ‘middle-range theory’ (Merton 1968: ch. 2) and therefore is not easily applicable to empirical research. On the other hand, it provides a range of concepts to compare many specialised areas and pays attention to the internal mechanisms and discourses articulated in each of them – their semantics and structures. It is different, therefore, from sociological proposals that aim to catch and denounce the distance between the ‘formalist’, symbolic self-representations of these systems and their ‘real’ routines in a social field set up by the ‘struggle between professionals possessing unequal technical skills and social influence’ (Bourdieu 1987: 827).

Every social system (from an organisation such as a court or a bank to a functional system such as the law or the economy) is unavoidably ‘embedded’ in society and cannot disentrench itself from the basic social operation, ie, communication. ‘Disembeddedness’ (in the line of thought by Polanyi 2001) is simply (conceptually) impossible according to Luhmann’s theory (2013: 110). More than this: each social system reproduces society when it reproduces its own operations. Hence, one would need some criteria to specify why and how such diverse components (sentences and statutes, payments and borrowings, public policies and discourses) are distinguished and inter-related to form an order, a system. The ‘pedigree’ for each of these units of communication is not given by some transcendental fiction or shared consensus, such as those usual in jurisprudence (Kelsen’s Grundnorm or Hart’s rule of recognition); nor is it a matter of moral disagreement or authority. Legal communications are different from political or economic messages because of the function that these communications fill in relation to their surrounding social environment; the consequences that the law, politics or the economy produce act as causes, feeding back legal, political or economic communications – this is why these are functional systems. They are not an ideal ensemble, but empirical networks or chains of self-referred communications, organised around some generalised symbols (such as validity, money or power), referring to some problem, codified to distinguish the legal and the illegal, having and not having (money, property), government and opposition. The spheres of self-referred communications are, finally, structured through some programs, such as statutes and case law or investment plans and budgets.

If law – like economy or politics – is a matter of empirical observation, and theories and research are just communications, like sentences or menaces (observed through statutes and case law as crimes, illegal actions), the only difference that a study can claim in the face of its object is to work on a higher order of observation – to observe observations, to communicate about communications. Science builds communications following its own criteria and codes, giving limited answers linked to self-constructed hypotheses and trying to prove them to be true or false. Socio-legal research would encompass, from the viewpoint of social sciences, the basic operations of the legal system (eg, statute projects, judicial claims, defences and sentences), its reflexivity (such as the reflexivity of ordinary laws in the constitutional order, or of rules in principles and policies, or of norms of conduct in norms of process and organisation) and its reflection (self-descriptions through the legal doctrine).

Therefore, part I of this volume is concerned with the theoretical innovations that systems theory presents in relation to sociological and philosophical trends. It starts with a pure epistemological approach by Raffaele De Giorgi (Chapter 2) questioning the possibility of conducting socio-legal empirical research under systems theory, considering the ruptures that Luhmann made with rationalist philosophy based on the subject/object distinction and on notions of linear causality. The sociology of law is traditionally intended to approach – from an external, non-dogmatic point of view – the side of ‘is’ (versus ‘ought’), of efficacy (versus validity) and of society (versus the law). However, De Giorgi shows that these distinctions are also internal to the legal system, and in this way sociology becomes captive to properly legal operations and operational concepts. A more promising path, opened by systems theory and its approach to second-order observation (‘observing observers’), would be to really consider these differences as legal forms, as specific ways the legal system persists in its communication, building its own reservoirs of meaning and memory and its own ways of filtering, producing, presenting and approaching conflicts (through procedures). Instead of observing law and society as mutually external ‘places’, one would avoid what Whitehead (1948: 52) calls the ‘fallacy of misplaced concreteness’ and would start from the premise that law is a subsystem of society that through its own communications simply enlaces more communications, indications, self-descriptions and external observations (ie, hetero-reference) in order to construct its own reality.

Another venue for social systems theory, opened by legal scholars with affinities with the Frankfurt School (from Adorno to Habermas), is critical systems theory. Indeed, this possibility opens the way for linkages among Luhmann and many other authors, such as Foucault and the critical legal scholars (see, eg, Amato and Barros 2018). One should remember that Luhmann (1994) himself was sceptical about this normative emphasis and recommended avoiding it, while devaluing the gap between theoretical and empirical investigation, since all observation on a system would be an autological process – ie, observations applied to observations: self-reference in any case. Chapter 3 (by Lukas K. Sosoe) takes up exactly this question of the emergence of a proposal for ‘critical systems theory’, and places in this debate the possibility of using systems theory to observe empirical phenomena such as legal procedures and the role of the courts. Since systems theory observes and describes other systems (such as law, politics or education) and their own self-description, at the limit every systemic-theoretical statement is about empirical operations of communication. There is not a reality to grasp independent of communications; communications refer to themselves in interactions, organisations and functional systems. All these can be grasped by empirical research, but one would need to enlarge the methodological repertoire to couple it with the level of complexity required by a systemic-theoretical construct.

Part I, exploring theoretical bases for systemic empirical legal research, is completed with Chapter 4 (by John Paterson and Gunther Teubner), which discusses regulation and proposes the use of cognitive mapping methodology, presenting an empirical illustration of a particular regulatory situation (occupational health and safety in Britain’s offshore oil industry). Unlike simple propositions, theories are general articulations of concepts and cannot be falsified, perishing instead through a test in the face of some contrasting social ‘reality’ that lies objectively outside them. On the other hand, systems are not simply stipulations made by a researcher but observable self-organising processes taking place in the social world, drawing their own borders and differences and building their own programmes of difference minimisation. Paterson and Teubner advance these positions and claim that if some elements (communications) collected in a somehow controlled or restricted situation or context (empirical research) contrast with the theoretical expectations and explanations, that is a matter of irritation between the self-observed system (in some sense, its ‘sample’ built by the researcher) and the scientific system, with whose criteria and ‘validation’ a sociological theory complies. Through this irritation, the theory is pressured to learn, rearranging its concepts and suppositions. Homologously, a system (eg, politics) cannot interfere in another’s autopoiesis (eg, economy) but can simply learn and change its own programmes in view of the information gathered through hetero-observation.

Part II turns to exemplifying the concepts, methods and applications of socio-legal systemic research; it is focused on the interface between the legal and economic systems. Chapter 5 (by Bettina Lange) proceeds with a discussion of how to conceive regulation under a systemic-theoretical approach, focusing on the critical topic of the interface between social and natural systems, ie, environmental regulation. It deals with the concept of ‘interests’. For Lange, systemic-theoretical ideas on how knowledge about the social world is generated can be related to qualitative empirical approaches, which stress the relativity and subjectivity of the meaning systems of the particular actors studied. These actors (such as regulators and the regulated organisations) are observed as such by a social system – ie, they are addresses of communication – and their discourses express articulations of interests in line with some system of reference, such as the legal system, distinguished by its code, programmes and symbolic medium.

In Chapter 6, Cristina Besio and Margrit Seckelmann propose a case study on the regulation of e-scooters in German cities, focusing on the self-reference that a multitude of organisations build in order to conduct lawmaking and implementation. Organisations re-specify the irritations from their environment into internal programmes and decisions. The regulated actors seek influence in regulation, and the legislators answer with new follow-up mechanisms in what Besio and Secklemann describe as an open-ended and highly recursive communication network. This chapter therefore provides a provoking example of how to conduct research in public policies with a systemic approach.

Chapter 7 (by Lucas Fucci Amato) presents a theoretical discussion with reference to the relation between the legal and economic systems. A systemic approach is contrasted with the new institutional economics, which provides the main theoretical basis for ‘law and economics’ studies. Amato claims that the proposed conceptual changes and theoretical refocusing – in the direction of describing the internal structures of each social system, ie, its institutions – may refine the use of systems theory for empirical research on legal-economic operations. This is a way of reducing the complexity and widening the scale of a theory basically built to discern the relation between the global social system (society) and its subsystems (specially the functional systems). Now the focus should be explaining the inter-relations among these subsystems, their structural couplings, internal environments and organisations, and how these typical structures institutionalise the operations of each system.

We then enter part III of the book, which addresses empirical observation of the coupling between law and politics and discusses how to observe normative expectations in contemporary society. Chapter 8 (by Marco Antonio Loschiavo Leme de Barros) focuses on organisational systems as a key viewpoint for observing more empirically detailed communications and events, such as sentences and legal decision-making. It presents a systemic-theoretical framework for analysing courts as organisational systems, ie, a core legal subsystem. It recovers the Weberian tradition of analysis of power and domination within bureaucracies, and then introduces the discussions by Luhmann and his followers on the theme of organisations. The chapter finally provides a typology of courts, classified according to their typical communicative profiles (argumentation forms) in the interface with politics and economy.

The following chapters deal with the study of normative expectations as structures of the legal systems, many times colliding with other (especially cognitive) expectations coming from politics, economy, science, mass media and social movements, among other systems. Chapter 9 (by Mark Hanna) focuses on case studies in legal mobilisation and fundamental rights. Attention is given to the functional method underlying systems theory, from which a ‘soft empiricism’ emerges: the potential to structure information provided by empirical observation with the conceptual tools of this theory and revise the theory in the face of new data uploaded to it. Through that method, teleology can be dispensed with and causalities can be assumed simply as hypotheticals; the focus is shiften to problem–solution linkages and to the functionally equivalent structures ordering these relations. The chapter considers how this method can be compatible with radical constructivism, namely with the theory of observation. An interesting contrast between the purity of Luhmann’s theory – with its scale for typifying the long-lasting emergence of ‘modern society’ – and the rich and raw communicative material provided by more focused and detailed approaches (ie, empirical and middle-range research questions) is developed through the finding of the integration of many forms of societal differentiation within a functionally differentiated society. The ‘constructed types’ of a theory (McKinney 1966) are inevitably blurred and combined in describing and explaining complex but situated phenomena.

Chapter 10 (by Celso Fernandes Campilongo) discusses empirical observation of the legal system with reference to the diverse kinds of legal interpretation mobilised by protest and social movements. Its empirical observations mainly refer to contemporary Brazil, where a three-decade constitutional order plays the role of internalising into law many of the conflicts about unrealised expectations which that constitution itself and the following legal order formalised and generalised. Campilongo conceptualises two kind of social movements: those aiming at social integration, using protest performances and claims against the law (and against the differentiation between law, politics, economy etc.), and those that admit functional differentiation and mobilise law and dispute settlement as venues to increment the variation of the legal system, ie, to generate new interpretations to advance their expectations and pressure for the legal evolution.

Chapter 11 (by John Paterson) brings systemic theory to explain conjuncture, namely the procedural and constitutional questions raised by Brexit. The research question central to this chapter is: How generalised are expectations shaped in legal-political procedures, in their self-descriptions and justifying discourses? This interesting problem concerns how the frictions between political and legal institutions and organisations (prime minister, parliament and courts, the formal principle of parliamentary sovereignty and the uses and misuses of referendum) can contrast and frustrate popular expectations instead of congruently generalising norms – what Luhmann (2014: ch. 4, 2004: ch. 3) considered to be the singular function of the legal system.

In Chapter 12, we present an interview with Professor Chris Thornhill discussing as a trend of empirical research the historical-phenomenological observation of the legal-political interface, articulated around democratic constitutionalism. The conversation brings a consideration of the instability of contemporary democracies beyond a Eurocentric viewpoint. Evidence from the legal system shows how democracy at the level of nation states is a contemporary and ongoing construction, and how this process is interwoven with the transnational dynamics of law in a world society.

We intend this volume to present an up-to-date map of the applications of systems theory to socio-legal research, bringing to the reader both epistemological and conceptual discussions, as well as examples of current political and economic phenomena that are observed by the legal system in world society. The authors contribute to expand the horizons of systemic research throughout many countries and academic traditions.

References

Amato, L.F. and Barros, M.A.L.L. ...