The legal system does not operate in a vacuum but is connected with the
surrounding society. The code is specific for the legal system and cannot be
applied by other systems. However, law needs to correspond with the society, it
needs to be integrated. The code is insufficient for this task of integration.
Instead, the level of programming balances the code and reconnects the legal
system with the society. In this, according to Luhmann, the programming level
adopts the role earlier attributed to natural law in pre-modern societies. Before
social contract theories and the Age of Enlightenment, references to nature were
a way to bring external truisms into the legal system. For example, social
stratification was included into the rules of positive law but grounded in human
nature and natural necessity.
15 Similarly, law’s programmes convey elements into
the legal system, creating an ‘enacted’ environment within, where the system may
reconnect with society without losing its self-referential closure.
16
Luhmann makes a distinction between purpose-specific and conditional programmes. Law’s programmes are always conditional: they set out the conditions
on which the allocation of legal or illegal depends.
17 For example, a form of
logical syllogism follows conditional programming. Legal decisions are formulated through the syllogism where the application of a general rule (such as ‘the
plaintiff carries burden of proof and suffers the consequences of not fulfilling it’)
to singular past facts (‘X did not meet the burden of proof’) provide the
conclusion (‘X should suffer the consequences, i.e. the case is not decided in her
favour’). However, syllogistic argumentation often comes with fallacies, as setting
the general and singular premises is complicated. However, the form of syllogism
and the legal system’s infatuation with it depict how conditional programmes
operate. The conditional programme enables legal decisions to be dressed into
the form of syllogism; the form, in turn, provides the appearance of legitimacy.
18
It should be noted that conditional programmes look mainly at past events,
facts that have actualised. This is connected with the legal system’s objective of
maintaining expectations, as the legal system aims at stabilising them. Resolution
of conflicts comes down to making a decision on which side of the code is
applied in a single case, where the expectations of parties derive from general
premises and the application is directed at past events. Luhmann makes the point
that sometimes judges adopt a different role. For example, the best interest of the
child in custody cases does not simply look at past behaviour but also makes an
assumption of future events. Also, a judge might adopt a therapeutic role in cases
concerning juvenile delinquents or in debt restructuring cases or in situations of
transformative justice. These situations go beyond past events and look rather at
future facts. Strictly speaking, such purpose-specific programmes in law are no longer
operations within the legal system but outside of it. As Luhmann states, ‘such
programmes would run into the same problem that the future gives no satisfactory
answers to the question whether something is legal or illegal right now’.
19
Here, Luhmann makes an interesting remark, which has meaning for doctrinal
debate between litigation and ADR. ADR decisions often exceed the limits of
traditional litigation, which measures compensation for damages in money and
bypasses the potential importance of an apology as irrelevant. Mediation and
Heading towards justification 97
surrounding society. The code is specific for the legal system and cannot be
applied by other systems. However, law needs to correspond with the society, it
needs to be integrated. The code is insufficient for this task of integration.
Instead, the level of programming balances the code and reconnects the legal
system with the society. In this, according to Luhmann, the programming level
adopts the role earlier attributed to natural law in pre-modern societies. Before
social contract theories and the Age of Enlightenment, references to nature were
a way to bring external truisms into the legal system. For example, social
stratification was included into the rules of positive law but grounded in human
nature and natural necessity.
15 Similarly, law’s programmes convey elements into
the legal system, creating an ‘enacted’ environment within, where the system may
reconnect with society without losing its self-referential closure.
16
Luhmann makes a distinction between purpose-specific and conditional programmes. Law’s programmes are always conditional: they set out the conditions
on which the allocation of legal or illegal depends.
17 For example, a form of
logical syllogism follows conditional programming. Legal decisions are formulated through the syllogism where the application of a general rule (such as ‘the
plaintiff carries burden of proof and suffers the consequences of not fulfilling it’)
to singular past facts (‘X did not meet the burden of proof’) provide the
conclusion (‘X should suffer the consequences, i.e. the case is not decided in her
favour’). However, syllogistic argumentation often comes with fallacies, as setting
the general and singular premises is complicated. However, the form of syllogism
and the legal system’s infatuation with it depict how conditional programmes
operate. The conditional programme enables legal decisions to be dressed into
the form of syllogism; the form, in turn, provides the appearance of legitimacy.
18
It should be noted that conditional programmes look mainly at past events,
facts that have actualised. This is connected with the legal system’s objective of
maintaining expectations, as the legal system aims at stabilising them. Resolution
of conflicts comes down to making a decision on which side of the code is
applied in a single case, where the expectations of parties derive from general
premises and the application is directed at past events. Luhmann makes the point
that sometimes judges adopt a different role. For example, the best interest of the
child in custody cases does not simply look at past behaviour but also makes an
assumption of future events. Also, a judge might adopt a therapeutic role in cases
concerning juvenile delinquents or in debt restructuring cases or in situations of
transformative justice. These situations go beyond past events and look rather at
future facts. Strictly speaking, such purpose-specific programmes in law are no longer
operations within the legal system but outside of it. As Luhmann states, ‘such
programmes would run into the same problem that the future gives no satisfactory
answers to the question whether something is legal or illegal right now’.
19
Here, Luhmann makes an interesting remark, which has meaning for doctrinal
debate between litigation and ADR. ADR decisions often exceed the limits of
traditional litigation, which measures compensation for damages in money and
bypasses the potential importance of an apology as irrelevant. Mediation and
Heading towards justification 97