Luhmann and Law

Christopher Thornhill

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781472455598
• eBook ISBN: 9781000152098
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Niklas Luhmann wrote a number of works which have decisively shaped the recent development of legal science as a theoretical discipline. Some basic elements of his theory have been widely appropriated by other legal theorists, such that it is difficult to imagine contemporary reflection in legal theory, and above all legal sociology, without Luhmann. This collection brings together the most important canonical and cutting-edge papers on Luhmann's legal thought. It is introduced in a comprehensive editorial piece by the editor which locates the articles in context and explores the issues and topics at hand.

Part I: Textual analysis

1 Society’s Legal System

DOI:10.4324/9781003075103-1

Michael King and Chris Thornhill

Preliminary points

The legal system

Defining terms may seem a pedantic and unnecessary exercise, particular where the terms in question are used repeatedly and without apparent confusion both in popular parlance and academic texts. Yet the combination of subtle changes in concepts resulting from German to English translation, on the one hand, and the very specific meanings that Luhmann gives to terms such as ‘system’ within his theoretical scheme, on the other, makes it necessary for us to make it clear from the outset what he means by Rechtssystem, which we have translated by ‘legal system’. It would perhaps be helpful from the outset to state what he does not mean. The ‘legal system’ for Luhmann is not those institutions – legislative chambers, courts, tribunals, lawyers’ offices and chambers – which have a physical existence and are part of an organizational structure. Nor does it consist of all those people professionally engaged in the operation and administration of the law. Indeed, it does not consist of people at all People are, of course, necessary for the operation of the legal system, but das Rechtssystem does not refer to their personal characteristics or even to the roles that they perform within the courts and other legal institutions. Neither does it consist of ‘organized legal practice, that is mainly practice in the courts, parliaments and also occasionally in administrative organizations which make law based on delegated powers and law firms which channel legal access to the courts’.¹ Law, for Luhmann, is not subject to physical or geographical boundaries or defined by the status of individuals (judge, solicitor, law lecturer, court usher).

An alternative translation of das Rechtssystem is ‘system of law’, which, unfortunately, in English tends to invoke the rather too narrow concept of the written law as set out in statutes and legal judgments. Another, and one that we frequently use during the course of this book, is simply ‘law’. This corresponds to Luhmann’s use of the term das Recht which, in his terms, is identical to das Rechtssystem. Law, in short, is the legal system; it is a system of communications which identifies itself as law and is able to distinguish between those communications which are part of itself and those which are not. Our use of ‘legal system’ then refers only to law as a system of communications,² not to any other institutions. Law consists of communication and nothing but communication.

But what kind of communications, one might ask, count as law? The inevitably circular answer to this question is: all communications that are recognized by law as belonging to the legal system, for only the legal system can say what is and what is not law. An obvious follow-up question is: ‘How does the system recognize communications as legal communications?’ Here the answer is more specific. A legal communication is any communication which is based on or relates to the distinction legal/illegal or lawful/unlawful, Law extends to all those communications that are understood as directly relating to the issue of legality or illegality.³ It extends, for example, to car-drivers arguing about which of them made the error of judgment which resulted in an accident, a customer insisting on his or her rights as a consumer that a shop reimburses him or her for faulty goods, a man refusing to pay maintenance for a child on the basis that the father could have been someone else. In all three examples what is invoked is law rather than some other system of communication. The legal system would recognize communications in all three examples as legal communications. Put the other way, law in each example is used as a way of giving meaning or significance to the events. Once the events have been communicated about in terms that make sense for law, these communications become part of the legal system and also of society. Yet, as Luhmann points out, it is not the act of being involved in a motor accident, of being dissatisfied with the goods one has bought or of refusing to accept that one has fathered a child which constitutes the event within the legal system. In fact people communicating about these matters may not even realize that they are involved in legal relations or may wrongly believe that the law does not apply to their particular situation.

In all three examples nonetheless the legal system recognizes the communication as a legal communication by the fact that what was used as the framework for understanding or making sense of the event was law. The starting point for Luhmann’s sociological approach is always the social system consisting of communications which refer exclusively to other communications of the same kind and which construct their own meaning in this way. It is the communicated interpretation of the event by law as having meaning for law through its attribution of its binary values, lawful and unlawful, which brings it within the boundaries of the legal system and society. Deciding whether a communication is a legal communication is possible, therefore, only through observation of law’s own operations,⁴

Luhmann and legal positivism

The question of whether Luhmann is ‘a positivist’ (or for some critics ‘a legal positivist’)⁵ is an important one, and so needs to be discussed as a preliminary issue. His description of the legal system recursively organizing information from its environment in such a way as to produce legal communications has led to some commentators labelling him a ‘legal positivist’. It is Jürgen Habermas who among all Luhmann’s critics has insisted most emphatically on an account of Luhmann as legal positivist. He argues that Luhmann separates facts from values in the way that he treats law as if it has no inherent ideological or normative content; indeed, Habermas directly defines his own legal-theoretical project as an attempt to overcome this type of legal positivism – a positivism which he associates expressly with Luhmann – in the name of a morally substantial, sociological conception of legal validity.

The status and nature of Luhmann’s theory of law depends to a large extent on the way the question of his relation to positivism is answered. If Luhmann is indeed seen as a ‘legal positivist’, then his ideas may be slotted neatly into a category of pre-existing theories about law, thereby undermining the originality of the theory and its pretensions as offering a serious sociological enquiry. To address this issue, though, we need to distinguish between legal positivism and social or sociological positivism. In legal theory the term ‘positivism’ has a particular meaning. It depicts law as a freestanding series of norms not regulated by any moral, political or ideological superstructure, and it claims, consequently, that all legal problems may be addressed only as inner-juridical problems. From this perspective, legal science or jurisprudence becomes the study of rule creation and interpretation within the legal system. These rules are seen as norms or ‘ought propositions’ setting out the way that people and organizations should behave, but these are quite distinct from moral or political values.

Positivism initially developed as a hugely influential type of early legal-state theory in Germany in the early to mid-nineteenth century – starting with the school of historical positivism and culminating in the positivist models of public law, which propped up Bismarck’s constitutional order. Representatives of early German positivism, in very different ways and for very different political agendas, focused on providing an account of legal validity, which explained law as a formal set of rules, defining the state as an accountable legal actor with limited entitlements and powers, and guaranteeing minimal conditions of private-legal neutrality and autonomy outside the directly political order of the state. However, perhaps the most influential of all proponents of the doctrine of legal positivism was Hans Kelsen, the eminent Austrian theorist of constitutional and international law. Kelsen argues that the pure ‘validity’ of law should be separated from all political, moral, or extra-legal demands.⁶ He conceives of law as a set of autonomous norms which are operative solely in the world of ‘the ought’ and have no correlation with causes in the material or sociological ‘world of being’.⁷ According to the principles of legal positivism, therefore, laws should be studied in their own right and not as an instrument for putting into effect values extraneous to law itself.⁸

Legal positivism stands in direct opposition to legal theories which seek out motives and justifications beyond the boundaries of the law itself; these include natural law theory, sociological theories of law, social contract theory, or theories which see law as putting into effect an expressly political agenda. In positivist theories, rules of law are taken as ‘given’, as ‘facts’, as ‘data which it is the lawyer’s task to analyze and order’,⁹ to interpret according to the internal rules of the law itself. This treatment of law as a ‘given’, and the form of technically specific analysis that this demands, is analogous to the assumptions and techniques associated with positive science. Although there are clear differences between the work of legal scholars and scientists, the assumption of self-evident ‘facts’ existing within an enclosed framework of knowledge is common to both positive law and positive science. Such assumptions enable chemists, for example, to test for the presence of and identify certain chemicals and their properties, which in turn enable rules to be devised around the relationship between different chemicals.

Luhmann’s work on law may certainly be seen as belonging to the legal positivist tradition, but to label him exclusively as a positivist both misconstrues his social theory and misses the most important aspects of that theory insofar as it relates to law. In the sense that, for Luhmann, it is only law that can decide what is law and what is lawful and unlawful, and the results of these decisions have to be accepted as ‘social facts’, regardless of the motives or intentions of the lawmakers and law-interpreters, the positivist label does have some validity. On the other hand, those who attach the positivist label tend to ignore the general theoretical context in which Luhmann conducted his enquiry into law, set out in Chapter 1 of this book, and they prefer instead to see him simplistically as a staunch defender of the present state of the law and a critic of those who agitate for change.¹⁰

If Luhmann is to be classified as a positivist, it needs to be acknowledged that his ‘positivism’ is of a very particular kind, and should be differentiated from that of all earlier legal positivists. The objective which he sets himself is not, like Hans Kelsen’s,¹¹ to construct or to define law as a universally valid system of positive norms; it is rather to examine law as a contingent and infinitely alterable system of communications. Furthermore, if Luhmann is to be accused, in Habermas’s terms, of separating facts from values,¹² and of treating law as if it had no inherent ideological or normative content, it should also be recognized that in his theoretical scheme this separation is inevitable. For Luhmann, law’s ‘facts’ are only ever ‘limited facts’; they are facts, truth or reality only for the legal system, and they cannot be conflated with values. To accuse Luhmann, therefore, of corrupting law by detaching it from human concerns is simply a misrepresentation of how law, in his terms, constructs and explains its own reality and the extent of its validity.

For Luhmann, in short, law’s facts are certainly the positive products of legal processes which make sense of a reality that is accessible only through the interpretations offered by law itself, using its distinctive code of legal/illegal or lawful/unlawful. However, the ‘facts’ recognized by law are not factual in any absolute sense, since law, like every other social system in Luhmann’s scheme, constructs its own environment and the information which it obtains from that environment has already been pre-interpreted in ways that have meaning for its own operations. In this respect Luhmann differs markedly from the classical line of legal positivism. In its classical conception, legal positivism defined itself in express opposition to broader sociological or motivational accounts of the interrelation between law and other aspects of social reality, and it tended to separate law from all other areas of inquiry, as a distinct and privileged realm of validity. This is surely not the case in Luhmann’s variant on positivism. Luhmann merely examines law, or positive law, as one of the distinct systems of meaning in which society communicates about itself. This clearly necessitates an account of how law communicates with politics, the economy, medicine and so on, and it clearly entails a relativization of the status and centrality of the legal system in modern society. For this reason alone, Luhmann cannot be aligned to any common conception of legal positivism.

Moreover, while Luhmann certainly removes all ethical content from the operations of the law, he does not attribute any permanent normative prescriptions to the legal system. If one chooses to ignore the general theoretical context of Luhmann’s account of law and reads his description of law as representing some ultimate social ‘truth’ and not merely law’s self-description, it is hardly surprising that one might interpret his writings on law as positivistic. The important point about Luhmann’s very particular brand of positivism, however, is that, while law in modern society is, and has to be, positivist law, it is only so in the sense that the image of law that the legal system presents to itself is a positivistic one – one of law as facts, as ‘givens’ produced by judges and legislators. The important theoretical implication of such self-generated positivism is not that the legal system survives in isolation from the rest of society, basing its decisions exclusively on its own previous communications, but that it exists and should continue to exist as a comprehensive autopoietic system which puts into operation legal doctrine based on a knowledge, its own knowledge, of the world as it really is.¹³ This is what Luhmann sees when he describes law in the process of observing its own operations and representing itself to the external world.

In this light Luhmann’s contribution to legal theory could well be seen as marking out the ultimate position in legal positivism – one where law becomes a free-floating unit detached from all substantive foundations. Despite this, Luhmann repeatedly emphasizes that law remains within the context of a society consisting of communications of which legal communications represent one and only one way of giving meaning to events and has no claim to special importance. Law, therefore, does not constitute a privileged system of positive norms. Moreover, for Luhmann, the autopoiesis of law is in itself is neither a good nor a bad thing. It does not preclude social change through the medium of law, nor does it argue directly against others who criticize the law’s operations and decisions from a moral or political standpoint. For Luhmann, however, whatever changes in society, and the form that social change takes, is a matter of contingency, of chance happening, which can be neither predicted nor controlled by political or moral programmes which attempt to use law as an instrument of change.

Although Luhmann observes law’s self-description as ‘positive law’, for him, therefore, this self-description should not simply be accepted at face value. It is, as we shall see, based on paradox, on self-deception, and sustained by its continual successful attempts to conceal this paradoxical existence. The second-order observation that Luhmann undertakes is thus far removed from the uncritical acceptance of the image of law and its role in society conveyed by law reports, or the public pronouncements of judges or politicians. To describe Luhmann simply as a legal positivist, therefore, is to distort both the task which he sets himself as a sociological observer and the social theoretical context in which he undertook his analysis of law.

The normative nature of Luhmann’s theory of law

As we have emphasized, Luhmann does not at any point in his extensive writings on law take sides in debates on justice and ...

Table of contents

• Cover Page
• Half Titlepage
• Series Page
• Full Titlepage
• Copyright Page
• List of Content
• Acknowledgements
• Series Preface
• Introduction
• Part I: Textual analysis
• Part II: Luhmann and political sociology
• Part III: Luhmann and legal sociology
• Part IV: Luhmann and theoretical controversies
• Part V: Luhmann and new theoretical developments
• Index