sustain increasing complexity. For Luhmann, the distinction between a system
and its environment is the decisive building block of social order. Thus, the most
constitutive claim of systems theory can be narrowed down to the fact that
systems exist. Interestingly, UK Professors Michael King and Chris Thornhill
argue that social systems theory has constituted a Kuhnian scientific revolution,
2
as Luhmann abandons the human subject as the centre of social observations for
communication.
3 Luhmann’s theory also contests traditional legal positivism, as
its inherent distinction between the law and morals does not lead to anything
more than a paradox of simultaneously holding on to the distinction between the
two and being unable to reconcile it.
4
Luhmann’s theory reflects an understanding of a world which is socially
constructed through communication,
5 making communication, transmission of
information, the focal concept through which functional differentiation is
achieved. For Luhmann, society, like all social systems, consists of interlinked
communication that increasingly leads to functional differentiation of different
subsystems. By differentiation into subsystems such as law, economics and politics,
the overall system is able to make more varied connections by interlinking
communication, which, in turn, provides for the system’s existence. If these
connections were to stop, the system would seise to exist.
6 Thus, Luhmann
places communication at the core of all social systems. This starting point is useful
for our objective, which is to perceive how the use of information and communication technologies are changing dispute resolution and enforcement. Niklas
Luhmann’s theory of social systems strives to provide a generalised theory of
society and in social systems theory the existence of society, its evolution and
communication merge into one another. Luhmann describes the evolution
of society as the outcome of continuously increasing complexity, where
complexity is reined in by communication. In other words, increasing specialisation, i.e. functional differentiation, helps to reduce the devastating effects that
increasing complexity would otherwise have. Functional differentiation explains the
boundaries between different functions in society, e.g. law, politics and economics,
and continuous communication upholds the identities of these separate subsystems. Functional differentiation provides a model for examining the interrelationship between law, technology and society while simultaneously holding on to the
legal system’s distinct identity in the society.
Functional differentiation is achieved by specific communication that is unique
for every differentiated subsystem. By delegating complexity through functional
differentiation to the subsystems, the system is able to add to the overall
complexity within itself. Continuous functional differentiation describes how the
legal system is constantly becoming more complex, continuously making new
distinctions to provide more nuanced communication about what is law. However,
we cannot examine the effects of functional differentiated subsystems without
asking the reasons why exactly these systems have developed their own identity
within society. The legal system, which is the object of study here, provides
stability for society. The legal system maintains this stability by creating and
maintaining normative expectations. In simple terms, one may trust that the law
30 Theoretical implications of dispute resolution technology
and its environment is the decisive building block of social order. Thus, the most
constitutive claim of systems theory can be narrowed down to the fact that
systems exist. Interestingly, UK Professors Michael King and Chris Thornhill
argue that social systems theory has constituted a Kuhnian scientific revolution,
2
as Luhmann abandons the human subject as the centre of social observations for
communication.
3 Luhmann’s theory also contests traditional legal positivism, as
its inherent distinction between the law and morals does not lead to anything
more than a paradox of simultaneously holding on to the distinction between the
two and being unable to reconcile it.
4
Luhmann’s theory reflects an understanding of a world which is socially
constructed through communication,
5 making communication, transmission of
information, the focal concept through which functional differentiation is
achieved. For Luhmann, society, like all social systems, consists of interlinked
communication that increasingly leads to functional differentiation of different
subsystems. By differentiation into subsystems such as law, economics and politics,
the overall system is able to make more varied connections by interlinking
communication, which, in turn, provides for the system’s existence. If these
connections were to stop, the system would seise to exist.
6 Thus, Luhmann
places communication at the core of all social systems. This starting point is useful
for our objective, which is to perceive how the use of information and communication technologies are changing dispute resolution and enforcement. Niklas
Luhmann’s theory of social systems strives to provide a generalised theory of
society and in social systems theory the existence of society, its evolution and
communication merge into one another. Luhmann describes the evolution
of society as the outcome of continuously increasing complexity, where
complexity is reined in by communication. In other words, increasing specialisation, i.e. functional differentiation, helps to reduce the devastating effects that
increasing complexity would otherwise have. Functional differentiation explains the
boundaries between different functions in society, e.g. law, politics and economics,
and continuous communication upholds the identities of these separate subsystems. Functional differentiation provides a model for examining the interrelationship between law, technology and society while simultaneously holding on to the
legal system’s distinct identity in the society.
Functional differentiation is achieved by specific communication that is unique
for every differentiated subsystem. By delegating complexity through functional
differentiation to the subsystems, the system is able to add to the overall
complexity within itself. Continuous functional differentiation describes how the
legal system is constantly becoming more complex, continuously making new
distinctions to provide more nuanced communication about what is law. However,
we cannot examine the effects of functional differentiated subsystems without
asking the reasons why exactly these systems have developed their own identity
within society. The legal system, which is the object of study here, provides
stability for society. The legal system maintains this stability by creating and
maintaining normative expectations. In simple terms, one may trust that the law
30 Theoretical implications of dispute resolution technology