justification within the legal system also have meaning within the coupled
systems. What, then, is the relationship between structural couplings and autopoiesis? How does self-production relate to irritations from the system’s environment? It is clear that structural couplings are necessary for the evolution of a
system and also for autopoiesis as they help to immunise the system boundaries
and contribute new facts. As it is, both autopoiesis and structural couplings
between systems are operative couplings. Operative couplings refer simply to
connections between operations. As autopoiesis refers to couplings between
operations within a system, a structural coupling connects an operation from
one system with an operation of the other system.
10
There is a fourth possible interpretation of justification’s role in the legal
system. Justification might also be understood as the result of interpenetration,
where two co-evolved systems are able to borrow one another’s computing
power. However, Luhmann exemplifies interpenetration with the connection
between social systems of communication and the psychic system of consciousness,
which are linked through the use of language.
11 Interpenetration is a special type
of structural coupling but requires the dependent coexistence of the interpenetrating systems.
12 This means that the interpenetrating systems are formed by
convergent evolution. However, this option of considering justification as interpenetration is not possible, as the legal system has not co-evolved with any other
social subsystem after its functional differentiation. Therefore I discard this option
of interpretation.
It is noteworthy that ultimately all of these different forms of interaction
contribute to the autopoiesis of the legal system. These possible interpretations
vary to some extent depending on the role they play for the legal system and for
society generally. Whereas justification as law’s programme or as autopoiesis
directs our gaze inwards to the legal system, justification as interpenetration or
as structural couplings would emphasise the input to law’s operations from
outside the legal system. In short, there are only slight differences in emphasis,
depending on the chosen interpretation.
4.2.2 Justification as law’s programme?
If justification were a question of law’s programme, what would this mean? To
understand the role of programmes, we have to return to the coding of the legal
system. The legal system separates itself from its environment by the application
of the coding legal/illegal, which produces its normativity and identity. In turn,
law’s internal programmes decide how legal operations deal with situations. In
other words, the programme decides which side of the code is applied. For
example, programming decides whether a situation falls within civil law or
criminal law.
13 The code is harsh in its uncompromising absoluteness: the code
does not allow the system to react to its environment. However, reaction is
imperative for autopoiesis, and thus the code produces structures for deciding
how the code is allocated, rightly or wrongly. Programmes balance the harshness
of the code.
14
96 Three quests for justification
systems. What, then, is the relationship between structural couplings and autopoiesis? How does self-production relate to irritations from the system’s environment? It is clear that structural couplings are necessary for the evolution of a
system and also for autopoiesis as they help to immunise the system boundaries
and contribute new facts. As it is, both autopoiesis and structural couplings
between systems are operative couplings. Operative couplings refer simply to
connections between operations. As autopoiesis refers to couplings between
operations within a system, a structural coupling connects an operation from
one system with an operation of the other system.
10
There is a fourth possible interpretation of justification’s role in the legal
system. Justification might also be understood as the result of interpenetration,
where two co-evolved systems are able to borrow one another’s computing
power. However, Luhmann exemplifies interpenetration with the connection
between social systems of communication and the psychic system of consciousness,
which are linked through the use of language.
11 Interpenetration is a special type
of structural coupling but requires the dependent coexistence of the interpenetrating systems.
12 This means that the interpenetrating systems are formed by
convergent evolution. However, this option of considering justification as interpenetration is not possible, as the legal system has not co-evolved with any other
social subsystem after its functional differentiation. Therefore I discard this option
of interpretation.
It is noteworthy that ultimately all of these different forms of interaction
contribute to the autopoiesis of the legal system. These possible interpretations
vary to some extent depending on the role they play for the legal system and for
society generally. Whereas justification as law’s programme or as autopoiesis
directs our gaze inwards to the legal system, justification as interpenetration or
as structural couplings would emphasise the input to law’s operations from
outside the legal system. In short, there are only slight differences in emphasis,
depending on the chosen interpretation.
4.2.2 Justification as law’s programme?
If justification were a question of law’s programme, what would this mean? To
understand the role of programmes, we have to return to the coding of the legal
system. The legal system separates itself from its environment by the application
of the coding legal/illegal, which produces its normativity and identity. In turn,
law’s internal programmes decide how legal operations deal with situations. In
other words, the programme decides which side of the code is applied. For
example, programming decides whether a situation falls within civil law or
criminal law.
13 The code is harsh in its uncompromising absoluteness: the code
does not allow the system to react to its environment. However, reaction is
imperative for autopoiesis, and thus the code produces structures for deciding
how the code is allocated, rightly or wrongly. Programmes balance the harshness
of the code.
14
96 Three quests for justification