development. This means that reflexive law does not provide any specific material
values or criteria for desired outcomes.
26
Luhmann disagrees with Teubner’s vision of including reflexive elements in
systems theory, as in his view reflexive approaches to be too far-reaching in their
search for a synthesis of critical-emancipatory approaches, responsive dogmatics
and sociological analysis.
27 Drawing on Teubner, Professor John Paterson aims
to reconcile systems theory with reflexive elements by introducing different
scenarios that might enlarge the scope of structural couplings between law and
other systems.
28 However, as Professor King points out, the question of reflexive
elements in systems theory, and ultimately that of the legal system’s openness, is a
question of the theory’s limits. Simply put, law can only understand law and can
only regulate that which can be regulated by law due to its coding. However,
immense areas that might affect the fulfilment of regulatory objectives remain
invisible to law.
29 King perceives Teubner as well as Paterson striving to improve
the legal system’s performance of regulating social behaviour, which he does not
consider Luhmann having ever been interested in. Instead, this expanded opening through inclusion of reflexive elements does disservice to the theory, which
King regards best used as a ‘way of emphasising its limitations, self-deceptions
and paradoxes of law and politics in their various operations’.
30
This being said, the strength of systems theory in explaining how the legal
system works is in its ability to give impression of coherence despite incoherence,
to focus on appearance of control while hiding its foundational paradox. In other
words, law is legitimised violence and this paradoxical nature becomes visible
when coercion is used in enforcement. It is argued here that digital technologies
used for private enforcement reveal law’s inherent violence to the extent that this
foundational paradox cannot be disguised.
For Luhmann, all self-description of the legal system is based on paradoxes,
there can be no normative criteria similar to Kelsen’s Grundnorm, or even the
concept of justice on which law could be grounded. Foundational paradoxes
result from the self-observation of the system that always participates in the
system’s operations, from applying the code to itself. Without downplaying or
deparadoxifying this tautology, the foundational paradox would lead to paralysis
of the system’s operations and autopoiesis would stop. Through deparadoxification, i.e. by introducing new distinctions, the system is able to pretend that its
operations are not based on self-observation.
31 Michael King and Chris Thornhill
exemplify deparadoxification within the legal system through distinctions
between reasonableness/unreasonableness and constitutional/unconstitutional
that may be substituted for the problem whether the law may be justified by
universal morality or by natural law.
32
Although the legal system’s autopoiesis would cease in lack of deparadoxification, these paradoxes seem to reveal another side of the legal system, the
conflicts, contradictions and crises, the underside of law. These paradoxes are
also inherent and necessary for law, which becomes visible in the face of conflict.
Teubner raises globalisation as an example of a crisis which begins a ‘hectic search
for new bases of normative validity’.
33 The constant race for evolution, for
Understanding law and technology 35
values or criteria for desired outcomes.
26
Luhmann disagrees with Teubner’s vision of including reflexive elements in
systems theory, as in his view reflexive approaches to be too far-reaching in their
search for a synthesis of critical-emancipatory approaches, responsive dogmatics
and sociological analysis.
27 Drawing on Teubner, Professor John Paterson aims
to reconcile systems theory with reflexive elements by introducing different
scenarios that might enlarge the scope of structural couplings between law and
other systems.
28 However, as Professor King points out, the question of reflexive
elements in systems theory, and ultimately that of the legal system’s openness, is a
question of the theory’s limits. Simply put, law can only understand law and can
only regulate that which can be regulated by law due to its coding. However,
immense areas that might affect the fulfilment of regulatory objectives remain
invisible to law.
29 King perceives Teubner as well as Paterson striving to improve
the legal system’s performance of regulating social behaviour, which he does not
consider Luhmann having ever been interested in. Instead, this expanded opening through inclusion of reflexive elements does disservice to the theory, which
King regards best used as a ‘way of emphasising its limitations, self-deceptions
and paradoxes of law and politics in their various operations’.
30
This being said, the strength of systems theory in explaining how the legal
system works is in its ability to give impression of coherence despite incoherence,
to focus on appearance of control while hiding its foundational paradox. In other
words, law is legitimised violence and this paradoxical nature becomes visible
when coercion is used in enforcement. It is argued here that digital technologies
used for private enforcement reveal law’s inherent violence to the extent that this
foundational paradox cannot be disguised.
For Luhmann, all self-description of the legal system is based on paradoxes,
there can be no normative criteria similar to Kelsen’s Grundnorm, or even the
concept of justice on which law could be grounded. Foundational paradoxes
result from the self-observation of the system that always participates in the
system’s operations, from applying the code to itself. Without downplaying or
deparadoxifying this tautology, the foundational paradox would lead to paralysis
of the system’s operations and autopoiesis would stop. Through deparadoxification, i.e. by introducing new distinctions, the system is able to pretend that its
operations are not based on self-observation.
31 Michael King and Chris Thornhill
exemplify deparadoxification within the legal system through distinctions
between reasonableness/unreasonableness and constitutional/unconstitutional
that may be substituted for the problem whether the law may be justified by
universal morality or by natural law.
32
Although the legal system’s autopoiesis would cease in lack of deparadoxification, these paradoxes seem to reveal another side of the legal system, the
conflicts, contradictions and crises, the underside of law. These paradoxes are
also inherent and necessary for law, which becomes visible in the face of conflict.
Teubner raises globalisation as an example of a crisis which begins a ‘hectic search
for new bases of normative validity’.
33 The constant race for evolution, for
Understanding law and technology 35