applies the binary code of the political system, which is power/opposition
functioning through the medium of power, in addition to the code of the legal
system.
Interpenetration and structural couplings both provide external influences for a
system’s self-production and thus balance the effects of operative closure. Cognitive openness brings irritants from the environment into the legal system and the
legal system’s efforts to include them in its operations immunise the system against
external threats.
23
Luhmann’s social systems theory seems to provide useful tools for assessing the
interplay between law and technology while preserving law’s normative autonomy.
However, the use of technology in social practices such as dispute resolution is an
extremely multifaceted phenomenon that can hardly be subsumed into external
information any more than dispute resolution technology can be distanced from
the reality of technological artefacts, their production mechanisms, and cultural
meaning-creation. This brings us to question the limits of systems theory; is the
picture provided by the theory too abstract, so that it loses sight of social reality?
2.2.3 Limits of systems theory and law’s paradoxes – law’s futile quest for
justice, why systems theory – this is necessary for A2 narrative
Although Luhmann’s social systems theory provides useful tools for assessing the
interplay between economic gain, political power, ethical discourse and legal
decision-making, it has been criticised for various reasons. Lack of tools for
examining power relations, lack of normative content, and the focus on coherence
instead of paradoxes have all been criticised. This criticism has focused on law’s
relationship with politics and ethics. Understanding how law strives towards
unattainable justice exposes the limits of systems theory and is essential for the
discussion in Chapter 7 that examines how access to justice perspectives could be
used to justify private enforcement.
These notions are by no means new. The notorious Luhmann/Habermas
controversy focused on the communicative nature of Luhmann’s theory as well
as the strong distinction between law and politics. German sociologist Habermas
considered Luhmann’s theory descriptive to a fault, the ‘Hochform of technocratic consciousness, the “apology” of the status quo, meant to preserve the
latter.
24 By a rather technical application of the code, political elements of the
legal system are trivialised. As Thomas McCarthy formulates it, systems theory
then ‘promotes a depoliticization of the public sphere by defining practical
questions from the start as technical questions’.
25 However, counterarguments
have also been voiced and social systems theory’s view of law complemented.
Teubner has addressed systems theory’s shortcomings in perceiving power relations by development of what he calls reflexive law, where the legal system is
more open to interaction with other systems and thus more able to address social
behaviour, more prone to social engineering. According to Teubner’s conceptualisation, law is moving from formal law to substantive law and then onwards to
reflexive law, which imposes procedural and constitutive limitations to legal
34 Theoretical implications of dispute resolution technology
functioning through the medium of power, in addition to the code of the legal
system.
Interpenetration and structural couplings both provide external influences for a
system’s self-production and thus balance the effects of operative closure. Cognitive openness brings irritants from the environment into the legal system and the
legal system’s efforts to include them in its operations immunise the system against
external threats.
23
Luhmann’s social systems theory seems to provide useful tools for assessing the
interplay between law and technology while preserving law’s normative autonomy.
However, the use of technology in social practices such as dispute resolution is an
extremely multifaceted phenomenon that can hardly be subsumed into external
information any more than dispute resolution technology can be distanced from
the reality of technological artefacts, their production mechanisms, and cultural
meaning-creation. This brings us to question the limits of systems theory; is the
picture provided by the theory too abstract, so that it loses sight of social reality?
2.2.3 Limits of systems theory and law’s paradoxes – law’s futile quest for
justice, why systems theory – this is necessary for A2 narrative
Although Luhmann’s social systems theory provides useful tools for assessing the
interplay between economic gain, political power, ethical discourse and legal
decision-making, it has been criticised for various reasons. Lack of tools for
examining power relations, lack of normative content, and the focus on coherence
instead of paradoxes have all been criticised. This criticism has focused on law’s
relationship with politics and ethics. Understanding how law strives towards
unattainable justice exposes the limits of systems theory and is essential for the
discussion in Chapter 7 that examines how access to justice perspectives could be
used to justify private enforcement.
These notions are by no means new. The notorious Luhmann/Habermas
controversy focused on the communicative nature of Luhmann’s theory as well
as the strong distinction between law and politics. German sociologist Habermas
considered Luhmann’s theory descriptive to a fault, the ‘Hochform of technocratic consciousness, the “apology” of the status quo, meant to preserve the
latter.
24 By a rather technical application of the code, political elements of the
legal system are trivialised. As Thomas McCarthy formulates it, systems theory
then ‘promotes a depoliticization of the public sphere by defining practical
questions from the start as technical questions’.
25 However, counterarguments
have also been voiced and social systems theory’s view of law complemented.
Teubner has addressed systems theory’s shortcomings in perceiving power relations by development of what he calls reflexive law, where the legal system is
more open to interaction with other systems and thus more able to address social
behaviour, more prone to social engineering. According to Teubner’s conceptualisation, law is moving from formal law to substantive law and then onwards to
reflexive law, which imposes procedural and constitutive limitations to legal
34 Theoretical implications of dispute resolution technology