is on one’s side and the more often other people’s similar expectations have been
fulfilled by the courts, the stronger one’s expectation of legal protection can
and should be. Normative expectations connect with law’s nature as legitimised
coercion. This means that one can expect to have the public enforcement at one’s
disposal but this expectation has further criteria – first, the court has to decide in
one’s favour, to acknowledge the expectation and to label it as acceptable.
But what happens when one’s expectation of legal protection is not fulfilled;
what if the court does not grant access to enforcement? What makes social systems
theory interesting for the study of law is that law’s function of maintaining
expectations is not dependent of their fulfilment. Instead, law maintains expectations regardless of disappointment. This means that despite legal protection being
refused this time, one can still count on its protection in the future. Although
Luhmann’s theory has often been criticised its descriptive nature, law’s function of
upholding expectations even when these expectations are disappointed holds a very
distinct approach to normativity. Expectations are normative communications
about the future. When an expectation is upheld despite disappointment, the
dismissal simultaneously communicates that the expectation is right even though
in this case it is not. Simply put, the dismissal should also be read as a claim that a
specific norm should be upheld in the future although this time it is not upheld.
7
The counterfactual substantiation of the norm’s future relevance positions
Luhmann’s theory away from simple description. One could say that, deep down,
social systems theory has a normative component because expectations are normative, but this normativity functions differently from that usually associated with the
term, on a more foundational level.
If we are to understand law as a functionally differentiated subsystem that
provides stability by upholding expectations, we should then ask what law is and
how it is created. This is also necessary for perceiving how law interacts with
other systems and how technology can influence the legal system. According to
Luhmann, law, like all social systems, is communication: the legal system consists
of ‘all social communication that is formulated with reference to law’
8 and this
communication distinguishes it from its environment and other subsystems. It
follows from this that law creates itself by continuous flow of legal communication,
individual communicative operations, that reproduce and renew the legal system’s
boundaries over time in a cycle of self-production called autopoiesis. Luhmann
defines autopoiesis as the system’s self-production where the system produces itself
through its internal operations.
9 This means that only the legal system defines what
belongs to it and what does not,
10 no external communication can directly enter
the legal system.
11
How does the functionally differentiated system recognise which communication belongs to its self-production? Law, as well as all the other subsystems,
upholds its specific identity by applying a system-specific code for deciphering
which communication belongs to it. The code is a medium around which all the
communication within a system revolves, it represents the system’s rationality of
sorts. The code is always a distinction between binary oppositions, and the
functional differentiation is achieved through its application. Depending on
Understanding law and technology 31
fulfilled by the courts, the stronger one’s expectation of legal protection can
and should be. Normative expectations connect with law’s nature as legitimised
coercion. This means that one can expect to have the public enforcement at one’s
disposal but this expectation has further criteria – first, the court has to decide in
one’s favour, to acknowledge the expectation and to label it as acceptable.
But what happens when one’s expectation of legal protection is not fulfilled;
what if the court does not grant access to enforcement? What makes social systems
theory interesting for the study of law is that law’s function of maintaining
expectations is not dependent of their fulfilment. Instead, law maintains expectations regardless of disappointment. This means that despite legal protection being
refused this time, one can still count on its protection in the future. Although
Luhmann’s theory has often been criticised its descriptive nature, law’s function of
upholding expectations even when these expectations are disappointed holds a very
distinct approach to normativity. Expectations are normative communications
about the future. When an expectation is upheld despite disappointment, the
dismissal simultaneously communicates that the expectation is right even though
in this case it is not. Simply put, the dismissal should also be read as a claim that a
specific norm should be upheld in the future although this time it is not upheld.
7
The counterfactual substantiation of the norm’s future relevance positions
Luhmann’s theory away from simple description. One could say that, deep down,
social systems theory has a normative component because expectations are normative, but this normativity functions differently from that usually associated with the
term, on a more foundational level.
If we are to understand law as a functionally differentiated subsystem that
provides stability by upholding expectations, we should then ask what law is and
how it is created. This is also necessary for perceiving how law interacts with
other systems and how technology can influence the legal system. According to
Luhmann, law, like all social systems, is communication: the legal system consists
of ‘all social communication that is formulated with reference to law’
8 and this
communication distinguishes it from its environment and other subsystems. It
follows from this that law creates itself by continuous flow of legal communication,
individual communicative operations, that reproduce and renew the legal system’s
boundaries over time in a cycle of self-production called autopoiesis. Luhmann
defines autopoiesis as the system’s self-production where the system produces itself
through its internal operations.
9 This means that only the legal system defines what
belongs to it and what does not,
10 no external communication can directly enter
the legal system.
11
How does the functionally differentiated system recognise which communication belongs to its self-production? Law, as well as all the other subsystems,
upholds its specific identity by applying a system-specific code for deciphering
which communication belongs to it. The code is a medium around which all the
communication within a system revolves, it represents the system’s rationality of
sorts. The code is always a distinction between binary oppositions, and the
functional differentiation is achieved through its application. Depending on
Understanding law and technology 31