how justification of dispute resolution has been formulated – and changed – in
the course of time by continuous reinterpretation. Of course, the idea of law as a
historically sedimented societal structure is not limited to systems theory and
other theoretical frameworks would provide equally satisfactory entrance points
to this type of examination, which brings us to the second point. Secondly,
systems theory perceives law’s social function to be that of upholding expectations regardless of disappointment. This function provides tools for upholding
law’s normativity on a very fundamental level without resorting to the content of
material norms of legislation, case law or doctrine. By making the claim that the
expectation x is and will be valid on a general level although in casu the
expectation is not fulfilled positions systems theory beyond mere description,
although at first glance systems theory may appear to be mere description without
normative claims. However, this interpretation should not be read as contesting
the established body of literature on Luhmann’s theory. Instead, it is simply
pointed out that law’s function is not dependent on these deliverables of regulation
and case law, that law’s normative nature transcends the normativity of these
utterances.
Thirdly, this novel approach to law’s normativity provides a useful standpoint
to evaluating how external influences, such as that of technology, enter and
influence the legal system. This means that systems theory enables us to hold on
to an internal perspective of the legal system while simultaneously looking
beyond law’s boundaries. The theory’s descriptive force is useful for explaining
how the legal system interacts with other social systems in society. In other
words, the theory explains law and at the same time makes room for analysis of
the disruptive qualities of technology. And lastly, universal theory provides a
broad framework for examining the interplay with very distinct rationalities of law
and technology. Then again, the universality of the theory also opens it up to
criticism and there is the danger that the examination based on such theory will
disintegrate owing to its ever-expanding scope. However, the analysis is contained by the perspective of imminent critique, which – unlike fundamental
morality-based criticism which imposes a challenge from its external perspective –
is internal to the legal system.
2.2 Defining law through systems theory
2.2.1 Law as a stability-preserving social system
In order to apply Luhmann’s theory to the examination of privatisation of
coercion undertaken here, it is necessary to present the reader with a brief
overview of the focal concepts and ontology it presents, as the theory provides a
model for understanding the interactions between law, technology, and society.
Luhmann’s work is not known for its easy-to-understand nature owing to its
abstractness. Despite the high level of abstraction, the premises of social systems
theory are relatively straightforward. At the core of the theory is functionally
differentiated society, which has over time divided into several subsystems to
Understanding law and technology 29
the course of time by continuous reinterpretation. Of course, the idea of law as a
historically sedimented societal structure is not limited to systems theory and
other theoretical frameworks would provide equally satisfactory entrance points
to this type of examination, which brings us to the second point. Secondly,
systems theory perceives law’s social function to be that of upholding expectations regardless of disappointment. This function provides tools for upholding
law’s normativity on a very fundamental level without resorting to the content of
material norms of legislation, case law or doctrine. By making the claim that the
expectation x is and will be valid on a general level although in casu the
expectation is not fulfilled positions systems theory beyond mere description,
although at first glance systems theory may appear to be mere description without
normative claims. However, this interpretation should not be read as contesting
the established body of literature on Luhmann’s theory. Instead, it is simply
pointed out that law’s function is not dependent on these deliverables of regulation
and case law, that law’s normative nature transcends the normativity of these
utterances.
Thirdly, this novel approach to law’s normativity provides a useful standpoint
to evaluating how external influences, such as that of technology, enter and
influence the legal system. This means that systems theory enables us to hold on
to an internal perspective of the legal system while simultaneously looking
beyond law’s boundaries. The theory’s descriptive force is useful for explaining
how the legal system interacts with other social systems in society. In other
words, the theory explains law and at the same time makes room for analysis of
the disruptive qualities of technology. And lastly, universal theory provides a
broad framework for examining the interplay with very distinct rationalities of law
and technology. Then again, the universality of the theory also opens it up to
criticism and there is the danger that the examination based on such theory will
disintegrate owing to its ever-expanding scope. However, the analysis is contained by the perspective of imminent critique, which – unlike fundamental
morality-based criticism which imposes a challenge from its external perspective –
is internal to the legal system.
2.2 Defining law through systems theory
2.2.1 Law as a stability-preserving social system
In order to apply Luhmann’s theory to the examination of privatisation of
coercion undertaken here, it is necessary to present the reader with a brief
overview of the focal concepts and ontology it presents, as the theory provides a
model for understanding the interactions between law, technology, and society.
Luhmann’s work is not known for its easy-to-understand nature owing to its
abstractness. Despite the high level of abstraction, the premises of social systems
theory are relatively straightforward. At the core of the theory is functionally
differentiated society, which has over time divided into several subsystems to
Understanding law and technology 29