autopoiesis with external influences while simultaneously controlling its boundaries independently, a delicate interplay between openness and closure.
15 Still, the
system regulates how it reacts to impulses from its environment and by controlling
these impulses the system controls itself.
16
Impulses from environment and other subsystems cannot be directly included
in the legal system, as they often follow a different coding and the legal system
only recognises its own coding. Cognitive openness is enabled by two distinct
mechanisms: interpenetration which enables the system to borrow computational
resources from another system but has connective value only within the system,
17
and structural couplings between different social systems, where an operation has
value within both systems although in accordance with each system’s binary code.
These mechanisms are important for the discussion in Chapter 4, when we
examine how justification is created within the legal system and how technology
is challenging this justification in private enforcement.
Interpenetration refers to a specific connection between two separate systems
that have evolved together over time. In interpenetration both systems offer their
internal complexity for the other system to be used in its system-building.
Interpenetration increases the system’s independence by introducing further
complexity, or so to speak computational power, but simultaneously the systems’
mutual dependence is strengthened. Interpenetrating systems are in a way
co-determined, but not converged.
18 This follows from the autonomous interpretation both systems give to the events they share. Although the events are the
same, both systems give different meaning to them and connections made in
both systems lead to different consequences. Thus, interpenetration only has
meaning separately in each system. When describing interpenetration Luhmann
often gives examples of psychic or biological systems: nerve cells that share
information between the brain and human consciousness or consciousness and
communication.
19 Still, interpenetration is also possible between jointly evolved
social systems. For example, in the legal system the external motives and interests
of legislation often influence norm interpretation in legal decision-making. However, these motives are internally filtered before their inclusion – e.g. if a
legislative act results from political manoeuvring, its origins are not usually
discussed in a legal decision applying the act.
20
Another mechanism for welcoming external influences to social systems is
structural couplings (strukturelle Kopplung) that do not require joint evolution.
Instead, structurally coupled operations conform simultaneously to the coding of
two systems and belong to both systems, each system interpreting the operation
autonomously on its side. Structural couplings relay external influences and
enrich a system’s autopoiesis. For example, contract and property are structural
couplings between law and commerce; constitution is a coupling between law
and politics.
21 Thus, a contract or property can be evaluated in accordance with
law’s binary code of legal/illegal and recognised by the legal system as belonging
to it as its own operation. Simultaneously, a contract abides by the code of
paying/not-paying of the economic system and is recognised within its symbolically generalised meaning medium, i.e. money.
22 Comparatively, a constitution
Understanding law and technology 33
15 Still, the
system regulates how it reacts to impulses from its environment and by controlling
these impulses the system controls itself.
16
Impulses from environment and other subsystems cannot be directly included
in the legal system, as they often follow a different coding and the legal system
only recognises its own coding. Cognitive openness is enabled by two distinct
mechanisms: interpenetration which enables the system to borrow computational
resources from another system but has connective value only within the system,
17
and structural couplings between different social systems, where an operation has
value within both systems although in accordance with each system’s binary code.
These mechanisms are important for the discussion in Chapter 4, when we
examine how justification is created within the legal system and how technology
is challenging this justification in private enforcement.
Interpenetration refers to a specific connection between two separate systems
that have evolved together over time. In interpenetration both systems offer their
internal complexity for the other system to be used in its system-building.
Interpenetration increases the system’s independence by introducing further
complexity, or so to speak computational power, but simultaneously the systems’
mutual dependence is strengthened. Interpenetrating systems are in a way
co-determined, but not converged.
18 This follows from the autonomous interpretation both systems give to the events they share. Although the events are the
same, both systems give different meaning to them and connections made in
both systems lead to different consequences. Thus, interpenetration only has
meaning separately in each system. When describing interpenetration Luhmann
often gives examples of psychic or biological systems: nerve cells that share
information between the brain and human consciousness or consciousness and
communication.
19 Still, interpenetration is also possible between jointly evolved
social systems. For example, in the legal system the external motives and interests
of legislation often influence norm interpretation in legal decision-making. However, these motives are internally filtered before their inclusion – e.g. if a
legislative act results from political manoeuvring, its origins are not usually
discussed in a legal decision applying the act.
20
Another mechanism for welcoming external influences to social systems is
structural couplings (strukturelle Kopplung) that do not require joint evolution.
Instead, structurally coupled operations conform simultaneously to the coding of
two systems and belong to both systems, each system interpreting the operation
autonomously on its side. Structural couplings relay external influences and
enrich a system’s autopoiesis. For example, contract and property are structural
couplings between law and commerce; constitution is a coupling between law
and politics.
21 Thus, a contract or property can be evaluated in accordance with
law’s binary code of legal/illegal and recognised by the legal system as belonging
to it as its own operation. Simultaneously, a contract abides by the code of
paying/not-paying of the economic system and is recognised within its symbolically generalised meaning medium, i.e. money.
22 Comparatively, a constitution
Understanding law and technology 33