change, for reconstruction, renewal and new selections are crucial for the
existence of the system. If the system cannot renew itself through its autopoiesis,
its immune system deteriorates and in the end it ceases to exist. Based on this,
Teubner considers self-contradictions, anomalies and paradoxes to be essential for
self-renewal. Thus, it is this unquestioning, voracious need for change that draws
us closer to law’s paradoxes, forcing us to ask what is behind them, what they are
made of. Unravelling law’s paradoxes might prove out to be useful for examining
the challenge imposed by technology-driven private enforcement, as identifying
the pain-spots of deparadoxification mechanisms sheds light to the relationship
between law and technology.
Within science and technology studies, the focus is often on interplay between
different social practices. For example, Indian American Professor Sheila Jasanoff
suggests that technology, science and social practices such as law co-produce
themselves. According to Jasanoff, ‘knowledge and its material embodiments are
at once products of social work and constitutive of forms of social life; society
cannot function without knowledge any more than knowledge can exist without
appropriate social supports’.
34 Similar to this, Friedrich Kittler, a German media
theorist known for the dystopian overtones of his writings, perceives that media
technology defines human interaction, to the point that ‘what remains of people
is what media can store and communicate’.
35 German legal historian Cornelia
Vismann, in turn, emphasises the impact of a written form, of files (Akten), in
shaping legal practices throughout history.
36
It seems that media theorists focus on the interactive elements between law
and technology, which then become entwined. Taking these media-theoretical
viewpoints into consideration in evaluating the relationship between law and
technology does not necessarily contradict the operative closure of societal
subsystems. For example, we can perceive media as having impact on the internal
functioning of the subsystems both by providing new irritants for the subsystems
to manage and by providing a reflection of the overall system that is applied
internally in the subsystems.
37
Moreover, we can consider the challenge of dispute resolution technology as
the necessary evil that has the function of accelerating law’s renewal. Instead of
crisis, the new irritant is reworded as a possibility. Instead of hiding the paradox,
we may embrace its disruptive force. As Luhmann focuses on deparadoxification,
critical systems theory advocated by German legal scholar Andreas FischerLescano focuses on revealing instead of hiding law’s foundational paradoxes.
Critical systems theory ‘regards real contradictions as the societal engine’ and
aims towards the demystification of these paradoxes.
38 By implementing elements
of critical theory to systems theory, it could be possible to reveal deconstructively
the political elements.
39
In addition to this emphasis on paradoxes, critical systems theory is sensitive to
political controversies within social orders, which seems to imply that complementing social systems theory with these critical insights might address some of
its apparent shortcomings.
40 Fischer-Lescano recognises two types of critique
enabled by critical systems theory that are relevant to law. These are value critique
36 Theoretical implications of dispute resolution technology
existence of the system. If the system cannot renew itself through its autopoiesis,
its immune system deteriorates and in the end it ceases to exist. Based on this,
Teubner considers self-contradictions, anomalies and paradoxes to be essential for
self-renewal. Thus, it is this unquestioning, voracious need for change that draws
us closer to law’s paradoxes, forcing us to ask what is behind them, what they are
made of. Unravelling law’s paradoxes might prove out to be useful for examining
the challenge imposed by technology-driven private enforcement, as identifying
the pain-spots of deparadoxification mechanisms sheds light to the relationship
between law and technology.
Within science and technology studies, the focus is often on interplay between
different social practices. For example, Indian American Professor Sheila Jasanoff
suggests that technology, science and social practices such as law co-produce
themselves. According to Jasanoff, ‘knowledge and its material embodiments are
at once products of social work and constitutive of forms of social life; society
cannot function without knowledge any more than knowledge can exist without
appropriate social supports’.
34 Similar to this, Friedrich Kittler, a German media
theorist known for the dystopian overtones of his writings, perceives that media
technology defines human interaction, to the point that ‘what remains of people
is what media can store and communicate’.
35 German legal historian Cornelia
Vismann, in turn, emphasises the impact of a written form, of files (Akten), in
shaping legal practices throughout history.
36
It seems that media theorists focus on the interactive elements between law
and technology, which then become entwined. Taking these media-theoretical
viewpoints into consideration in evaluating the relationship between law and
technology does not necessarily contradict the operative closure of societal
subsystems. For example, we can perceive media as having impact on the internal
functioning of the subsystems both by providing new irritants for the subsystems
to manage and by providing a reflection of the overall system that is applied
internally in the subsystems.
37
Moreover, we can consider the challenge of dispute resolution technology as
the necessary evil that has the function of accelerating law’s renewal. Instead of
crisis, the new irritant is reworded as a possibility. Instead of hiding the paradox,
we may embrace its disruptive force. As Luhmann focuses on deparadoxification,
critical systems theory advocated by German legal scholar Andreas FischerLescano focuses on revealing instead of hiding law’s foundational paradoxes.
Critical systems theory ‘regards real contradictions as the societal engine’ and
aims towards the demystification of these paradoxes.
38 By implementing elements
of critical theory to systems theory, it could be possible to reveal deconstructively
the political elements.
39
In addition to this emphasis on paradoxes, critical systems theory is sensitive to
political controversies within social orders, which seems to imply that complementing social systems theory with these critical insights might address some of
its apparent shortcomings.
40 Fischer-Lescano recognises two types of critique
enabled by critical systems theory that are relevant to law. These are value critique
36 Theoretical implications of dispute resolution technology