references may enter law’s operations. One such mechanism are structural couplings that may emerge between different systems when an operation applies codes
of two systems.
It is argued here that the relationship between law and technology could be
interpreted as interaction between two distinct systems sharing operations through
cognitive openness. This claim departs from an analysis of the reciprocal and
complicated relationship between technological artefacts and the culture surrounding their use, suggesting that the social dimension of technology use could be
perceived as communication. Based on the social and disruptive properties, it is
suggested that the use of ICT be seen as an emergent social system. The next chapter
asks how this growing social importance of technology relates to dispute resolution,
how it contributes to privatisation of coercion and thus creates a justificatory crisis.
Notes
1 ‘Creative use of paradox is the message that moves autopoiesis [i.e. law’s self-creation]
beyond deconstructive analysis into reconstructive practice.’ See closer, Teubner, ‘The
Two Faces of Janus: Rethinking Legal Pluralism’ (n 39) 1444.
2 King and Thornhill also list other reasons for this stance, starting from Luhmann’s
claim that human rationality cannot act as a normative focus, the theory’s operative
closure, which we will discuss further in the following, and the theory’s ability to
demonstrate the inherently paradoxical nature of social systems. See Michael King and
Chris Thornhill, ‘Introduction’, Luhmann on Law and Politics. Critical Appraisals
and Applications (Hart Publishing 2006) 8.
3 In order to position social systems theory within socio-legal theories, it is focal to
understand the how Luhmann’s conclusions depart from those of his mentors, American
sociologist Talcott Parsons’ action theory and structural functionalism. However,
Luhmann expands on Parsons’ systemic conceptualisation and downplays the emphasis
given to value commitments in Parsons’ theory. For Luhmann’s discussion on Parsons,
see e.g. Niklas Luhmann, The Differentiation of Society (Stephen Holmes and Charles
Larmore trs, Columbia University Press 1982) 47–65; Niklas Luhmann, Social Systems
(John Bedmarz, Jr and Dirk Baecker trs, Stanford University Press 1995) 103–136.
Parsons’ macro-level analysis perceives the society as a complex system, where different
constituent parts work together for overall stability. The main difference between the
two scholars is that Parsons places human action at the centre of his theory whereas
Luhmann abandons the subjectivity of human actors for communication. For a detailed
discussion on the differences between Luhmann and Parsons, see John W Murphy,
‘Talcott Parsons and Niklas Luhmann: Two Versions of the Social “System”’ (1982) 12
International Review of Modern Sociology 291, 291.
4 Niklas Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A
Ziegert tr, Oxford University Press 2004) 76–77; Luhmann does not actually disagree
with legal positivism on the basis of its problem of legitimacy or its relation to natural
law, as has been done by others, but instead based on its lack of theoretical
connectivity within the science system. ‘Rather, the essential problem is that the
concept of positivity is theoretically inadequate. It may be appropriate when applied
in the context of reflexive theories of the legal system; however, when applied in a
scientific context it lacks connection to other theoretical concepts.’ ibid 76; See also
Niklas Luhmann, The Differentiation of Society (n 3) 90–121.
5 Niklas Luhmann, The Differentiation of Society (n.3) 47–65; Niklas Luhmann, Social
Systems (n 3) 103–136. Parsons’ macro-level analysis perceives society as a complex
system, where different constituent parts work together for overall stability. The main
Understanding law and technology 51
of two systems.
It is argued here that the relationship between law and technology could be
interpreted as interaction between two distinct systems sharing operations through
cognitive openness. This claim departs from an analysis of the reciprocal and
complicated relationship between technological artefacts and the culture surrounding their use, suggesting that the social dimension of technology use could be
perceived as communication. Based on the social and disruptive properties, it is
suggested that the use of ICT be seen as an emergent social system. The next chapter
asks how this growing social importance of technology relates to dispute resolution,
how it contributes to privatisation of coercion and thus creates a justificatory crisis.
Notes
1 ‘Creative use of paradox is the message that moves autopoiesis [i.e. law’s self-creation]
beyond deconstructive analysis into reconstructive practice.’ See closer, Teubner, ‘The
Two Faces of Janus: Rethinking Legal Pluralism’ (n 39) 1444.
2 King and Thornhill also list other reasons for this stance, starting from Luhmann’s
claim that human rationality cannot act as a normative focus, the theory’s operative
closure, which we will discuss further in the following, and the theory’s ability to
demonstrate the inherently paradoxical nature of social systems. See Michael King and
Chris Thornhill, ‘Introduction’, Luhmann on Law and Politics. Critical Appraisals
and Applications (Hart Publishing 2006) 8.
3 In order to position social systems theory within socio-legal theories, it is focal to
understand the how Luhmann’s conclusions depart from those of his mentors, American
sociologist Talcott Parsons’ action theory and structural functionalism. However,
Luhmann expands on Parsons’ systemic conceptualisation and downplays the emphasis
given to value commitments in Parsons’ theory. For Luhmann’s discussion on Parsons,
see e.g. Niklas Luhmann, The Differentiation of Society (Stephen Holmes and Charles
Larmore trs, Columbia University Press 1982) 47–65; Niklas Luhmann, Social Systems
(John Bedmarz, Jr and Dirk Baecker trs, Stanford University Press 1995) 103–136.
Parsons’ macro-level analysis perceives the society as a complex system, where different
constituent parts work together for overall stability. The main difference between the
two scholars is that Parsons places human action at the centre of his theory whereas
Luhmann abandons the subjectivity of human actors for communication. For a detailed
discussion on the differences between Luhmann and Parsons, see John W Murphy,
‘Talcott Parsons and Niklas Luhmann: Two Versions of the Social “System”’ (1982) 12
International Review of Modern Sociology 291, 291.
4 Niklas Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A
Ziegert tr, Oxford University Press 2004) 76–77; Luhmann does not actually disagree
with legal positivism on the basis of its problem of legitimacy or its relation to natural
law, as has been done by others, but instead based on its lack of theoretical
connectivity within the science system. ‘Rather, the essential problem is that the
concept of positivity is theoretically inadequate. It may be appropriate when applied
in the context of reflexive theories of the legal system; however, when applied in a
scientific context it lacks connection to other theoretical concepts.’ ibid 76; See also
Niklas Luhmann, The Differentiation of Society (n 3) 90–121.
5 Niklas Luhmann, The Differentiation of Society (n.3) 47–65; Niklas Luhmann, Social
Systems (n 3) 103–136. Parsons’ macro-level analysis perceives society as a complex
system, where different constituent parts work together for overall stability. The main
Understanding law and technology 51