which system-specific code is applied, operations are ‘coded’ as belonging within
or outside the system. For example, money (Geld) is the medium for the
economic system, and the code of economics paying/not paying defines which
operations belong to the economic system. The legal system, in turn, operates
through the medium of law (Recht), and the application of its code legal/illegal
prescribes operations belonging either to the legal system or outside of it.
Similarly, power (Macht) is the medium of the political system, which applies
the code power/opposition. The science system operates based on the medium
of truth (Wahrheit). According to Luhmann, the medium itself cannot be
deciphered cognitively but only the form that follows from it. In other words,
the code itself provides only a form for making distinctions but does not produce
information for the distinction.
12 In turn, programmes, which can be understood
as structures formulated over time, regulate which side of the code is applied to a
given operation.
13 In the legal system, programmes such as case law or legislation stipulate which expectations are upheld. Programming gives leeway that the
strict binary coding does not, programmes balance out the harshness of the
code.
14 These tools, the code and programming, help explain how the legal
system upholds its boundaries by itself and how external influences such as the
use of digital technologies in dispute resolution develop specifically legal identity.
Thus, the legal system is a functionally differentiated social subsystem that
produces its boundaries from its environment as well as its identity by applying
the code legal/illegal to all its operations. Self-production grants autonomy to
the system and simultaneously closes it to external influence. However, this
operative closure is complemented by cognitive openness, which explains how
external references are able to enter the legal system and to enrich its selfproduction. This combination of closure and openness is elemental for our
examination of technology’s impact on one of law’s central structures, namely
dispute resolution, as it explains how the legal system maintains control of its
boundaries while simultaneously remaining open to other systems.
2.2.2 Closed and open law and mechanisms of external influence
We have now established the starting points of systems theory: functional
differentiation and the system’s self-production, which are both established
through system-specific coding. Only the legal system’s operations define the
legal system, creating an operationally closed system. However, without making
room for external influences, the legal system cannot adjust, cannot evolve, its
continuous operations would slowly start withering and the circular referential
loop of self-production would eventually lead to tautology, inability to maintain
the system’s boundaries and existence. Simply put, the legal system needs to be
open to influences but it needs to limit their impact, which also explains how law
reacts to the disruptive qualities of digital technologies. Instead of complete
openness, Luhmann solves this shortcoming of operative closure by breaking
the self-referential circle and opens the system’s information gathering to its
environment. This cognitive openness means that the system can enrich its
32 Theoretical implications of dispute resolution technology
or outside the system. For example, money (Geld) is the medium for the
economic system, and the code of economics paying/not paying defines which
operations belong to the economic system. The legal system, in turn, operates
through the medium of law (Recht), and the application of its code legal/illegal
prescribes operations belonging either to the legal system or outside of it.
Similarly, power (Macht) is the medium of the political system, which applies
the code power/opposition. The science system operates based on the medium
of truth (Wahrheit). According to Luhmann, the medium itself cannot be
deciphered cognitively but only the form that follows from it. In other words,
the code itself provides only a form for making distinctions but does not produce
information for the distinction.
12 In turn, programmes, which can be understood
as structures formulated over time, regulate which side of the code is applied to a
given operation.
13 In the legal system, programmes such as case law or legislation stipulate which expectations are upheld. Programming gives leeway that the
strict binary coding does not, programmes balance out the harshness of the
code.
14 These tools, the code and programming, help explain how the legal
system upholds its boundaries by itself and how external influences such as the
use of digital technologies in dispute resolution develop specifically legal identity.
Thus, the legal system is a functionally differentiated social subsystem that
produces its boundaries from its environment as well as its identity by applying
the code legal/illegal to all its operations. Self-production grants autonomy to
the system and simultaneously closes it to external influence. However, this
operative closure is complemented by cognitive openness, which explains how
external references are able to enter the legal system and to enrich its selfproduction. This combination of closure and openness is elemental for our
examination of technology’s impact on one of law’s central structures, namely
dispute resolution, as it explains how the legal system maintains control of its
boundaries while simultaneously remaining open to other systems.
2.2.2 Closed and open law and mechanisms of external influence
We have now established the starting points of systems theory: functional
differentiation and the system’s self-production, which are both established
through system-specific coding. Only the legal system’s operations define the
legal system, creating an operationally closed system. However, without making
room for external influences, the legal system cannot adjust, cannot evolve, its
continuous operations would slowly start withering and the circular referential
loop of self-production would eventually lead to tautology, inability to maintain
the system’s boundaries and existence. Simply put, the legal system needs to be
open to influences but it needs to limit their impact, which also explains how law
reacts to the disruptive qualities of digital technologies. Instead of complete
openness, Luhmann solves this shortcoming of operative closure by breaking
the self-referential circle and opens the system’s information gathering to its
environment. This cognitive openness means that the system can enrich its
32 Theoretical implications of dispute resolution technology