knowledge, which examines science as a social activity in which political, cultural
and economic fluctuations may create points of convergence or ambiguity. This in
turn has strongly influenced science and technology studies in the 1980s.
50 The
interdisciplinary aspiration of understanding technology beyond its reflections in the
legal system is enabled by two steps. First, legal science has dual citizenship as it
belongs simultaneously to the legal system operating with the coding legal/illegal
and to the science system, which operates through the symbolically generalised
medium of truth (Wahrheit).
51 Secondly, systems theory itself enables interdisciplinary influences, as operations can be shared by several systems through structural
couplings.
As applications of technology-driven private enforcement are by definition
private and often also global regimes, no fixed sources doctrine can be applied
in this study, but instead focus is on global private regimes that have their own
specialised norm production.
52 In the absence of hard law, soft law adopts a
significant role in these private yet normative regimes. Thomas Schultz discusses
the same issue from a different perspective: he focuses on the processes through
which social structures transform into private legal systems. According to his
analysis, the ICANN and ODR platform of the e-commerce site eBay establish
themselves.
53 These conceptualisations demonstrate that ways in which private
social practices turn into legal regimes are particularly interesting at the convergence point of private and public, namely in dispute resolution that is changing as
a result of technology. Emphasising the role of such practices instead of sources
doctrine directs observation towards identifying these new regimes as belonging
to the legal system despite their unconventional origins. In other words, we ask
how these regimes come to be seen as legally relevant.
54
This interdisciplinary approach, together with internal immanent critique,
opens the identified justificatory narratives to value critique and critique of
statism, which is enabled by critical systems theory’s sensitivity to political
controversies. Critical close reading of deparadoxifying mechanisms replaces
sources doctrine as a methodological tool in this study. This interpretation of
justificatory narratives exposes their function of deparadoxification and thus
enables critical evaluation of how they adapt to the challenge of technology.
Despite its many merits, Luhmann’s social systems theory has shortcomings;
the theory does not leave room for social engineering, nor does it accommodate
analysis of power balances. Although the theory acknowledges the inherently
paradoxical nature of law, this is hidden through deparadoxification. Hence, this
theoretical framework is complemented with influences from critical systems
theory that strives to combine systems theory with critical theory. This vantage
point enables the examination of justificatory narratives as historically formulated
structures of the legal system. Before this, however, we need to understand how
technology interacts with the legal system.
This examination departs from the turn to technology in social sciences in the
1980s and from the classical theories of media theorists Marshall McLuhan and
Raymond Williams, as traces of both McLuhan’s technological determinism and
Williams’s social shaping of technology still affect conceptualisations of
Understanding law and technology 39
and economic fluctuations may create points of convergence or ambiguity. This in
turn has strongly influenced science and technology studies in the 1980s.
50 The
interdisciplinary aspiration of understanding technology beyond its reflections in the
legal system is enabled by two steps. First, legal science has dual citizenship as it
belongs simultaneously to the legal system operating with the coding legal/illegal
and to the science system, which operates through the symbolically generalised
medium of truth (Wahrheit).
51 Secondly, systems theory itself enables interdisciplinary influences, as operations can be shared by several systems through structural
couplings.
As applications of technology-driven private enforcement are by definition
private and often also global regimes, no fixed sources doctrine can be applied
in this study, but instead focus is on global private regimes that have their own
specialised norm production.
52 In the absence of hard law, soft law adopts a
significant role in these private yet normative regimes. Thomas Schultz discusses
the same issue from a different perspective: he focuses on the processes through
which social structures transform into private legal systems. According to his
analysis, the ICANN and ODR platform of the e-commerce site eBay establish
themselves.
53 These conceptualisations demonstrate that ways in which private
social practices turn into legal regimes are particularly interesting at the convergence point of private and public, namely in dispute resolution that is changing as
a result of technology. Emphasising the role of such practices instead of sources
doctrine directs observation towards identifying these new regimes as belonging
to the legal system despite their unconventional origins. In other words, we ask
how these regimes come to be seen as legally relevant.
54
This interdisciplinary approach, together with internal immanent critique,
opens the identified justificatory narratives to value critique and critique of
statism, which is enabled by critical systems theory’s sensitivity to political
controversies. Critical close reading of deparadoxifying mechanisms replaces
sources doctrine as a methodological tool in this study. This interpretation of
justificatory narratives exposes their function of deparadoxification and thus
enables critical evaluation of how they adapt to the challenge of technology.
Despite its many merits, Luhmann’s social systems theory has shortcomings;
the theory does not leave room for social engineering, nor does it accommodate
analysis of power balances. Although the theory acknowledges the inherently
paradoxical nature of law, this is hidden through deparadoxification. Hence, this
theoretical framework is complemented with influences from critical systems
theory that strives to combine systems theory with critical theory. This vantage
point enables the examination of justificatory narratives as historically formulated
structures of the legal system. Before this, however, we need to understand how
technology interacts with the legal system.
This examination departs from the turn to technology in social sciences in the
1980s and from the classical theories of media theorists Marshall McLuhan and
Raymond Williams, as traces of both McLuhan’s technological determinism and
Williams’s social shaping of technology still affect conceptualisations of
Understanding law and technology 39