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’ (n 3) 291.
6 Luhmann sees the increase of complexity as a necessary evolutionary step for modern
social systems such as societies. Complexity is defined through the connectivity of the
system’s elements: ‘we will call an interconnected collection of elements “complex”
when, because of immanent constraints in the elements’ connective capacity, it is no
longer possible at any moment to connect every element with every other element.’
Complexity can be coped with as ‘determinately structured complexity’ whereas the
incomprehensible complexity of trying to connect everything with everything renders
the system inoperable. See Niklas Luhmann, Social Systems (n 3) 20–24; It is
noteworthy that the possible selections are limited within the system through
conditioning. In Luhmann’s theory, conditioning is connected with the relationship
between alter and ego in communication. If communication is to take place, first the
ego needs to acknowledge itself and its environment. Second, the ego needs to direct
the communication at something, at the alter, i.e. the ego needs to acknowledge the
alter as separate and capable of observing the ego. This is called double contingency,
ibid 113. It should be noted that Luhmann adopts the term ‘double contingency’
from Talcott Parsons, whose influences are visible in several parts of Luhmann’s
systems theory. Luhmann discusses in detail in which areas he differs from Parsons’s
opinions. See Raf Vanderstraeten, ‘Parsons, Luhmann and the Theorem of Double
Contingency’ 2 Journal of Classical Sociology 77.
7 But this function of ‘ought’ is not unique to law and is not sufficient to separate it
from other systems which employ the same function, namely the systems of religion or
morals. Luhmann, Law as a Social System (n 4) 9; but, this function is achieved by the
application of the code where communications allocate the distinction between legal/
illegal. It should be pointed out that the definition of the code is in the distinction it
makes. The code is a method of making a distinction and the ‘legal’ side of the code is
defined only in reference to the ‘illegal’, the one does not exist without the other. If
expectations cease to be normative, law’s function is not fulfilled and thus the system’s
boundaries no longer maintain the system/environment difference. Uncertainty inherent
in the possibility of disappointments is absorbed by stabilisation instead of regulating
behaviour. Luhmann, Social Systems (n 3) 110.
8 Luhmann, The Differentiation of Society (n 3) 122.
9 Luhmann derives the terminology from cell biologists Humberto Maturana and
Francisco Varela, who developed the term from Greek (auto = self, poiesis = production) in order to refer to the cell’s self-maintaining chemistry. According to Maturana
and Varela, the term expresses the essential features of living organisms, namely
autonomy and self-referentiality. Maturana and Varela, in turn, derive the term
autopoiesis from an essay on Don Quixote, where Alonso Quixano decides on the path
of arms (praxis=action) instead of the path of letters (poiesis=creation). Autopoiesis, an
invented word referring specifically to the autonomy of organisms, was chosen for its
lack of history. See Humberto R. Maturana and Francesco J. Varela, Autopoiesis and
Cognition: The Realization of the Living (D. Reidel Publishing Company 1980) xvii.
Luhmann’s systems theory transfers the original concept of autopoiesis to social sciences.
10 As Luhmann puts it, ‘Es gibt kein Input von rechtlicher Kommunikation in das
Rechtssystem, weil es überhaupt keine rechtliche Kommunikation ausserhalb des
Rechtssystems gibt. . . . Und es ist eine Konsequenz der These, dass nur das Rechtsystem
selbst seine Schliessung bewirken, seine Operationen reproduzieren, seine Grenzen
definieren kann, und dass keine andere Instanz in der Gesellschaft gibt, die sagen
könnte: Dies ist Recht und dies ist Unrecht.’ Niklas Luhmann, Das Recht Der Gesellschaft
(Suhrkamp Verlag 1995) 69; See also, Luhmann, Law as a Social System (n 4) 100.
52 Theoretical implications of dispute resolution technology
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’ (n 3) 291.
6 Luhmann sees the increase of complexity as a necessary evolutionary step for modern
social systems such as societies. Complexity is defined through the connectivity of the
system’s elements: ‘we will call an interconnected collection of elements “complex”
when, because of immanent constraints in the elements’ connective capacity, it is no
longer possible at any moment to connect every element with every other element.’
Complexity can be coped with as ‘determinately structured complexity’ whereas the
incomprehensible complexity of trying to connect everything with everything renders
the system inoperable. See Niklas Luhmann, Social Systems (n 3) 20–24; It is
noteworthy that the possible selections are limited within the system through
conditioning. In Luhmann’s theory, conditioning is connected with the relationship
between alter and ego in communication. If communication is to take place, first the
ego needs to acknowledge itself and its environment. Second, the ego needs to direct
the communication at something, at the alter, i.e. the ego needs to acknowledge the
alter as separate and capable of observing the ego. This is called double contingency,
ibid 113. It should be noted that Luhmann adopts the term ‘double contingency’
from Talcott Parsons, whose influences are visible in several parts of Luhmann’s
systems theory. Luhmann discusses in detail in which areas he differs from Parsons’s
opinions. See Raf Vanderstraeten, ‘Parsons, Luhmann and the Theorem of Double
Contingency’ 2 Journal of Classical Sociology 77.
7 But this function of ‘ought’ is not unique to law and is not sufficient to separate it
from other systems which employ the same function, namely the systems of religion or
morals. Luhmann, Law as a Social System (n 4) 9; but, this function is achieved by the
application of the code where communications allocate the distinction between legal/
illegal. It should be pointed out that the definition of the code is in the distinction it
makes. The code is a method of making a distinction and the ‘legal’ side of the code is
defined only in reference to the ‘illegal’, the one does not exist without the other. If
expectations cease to be normative, law’s function is not fulfilled and thus the system’s
boundaries no longer maintain the system/environment difference. Uncertainty inherent
in the possibility of disappointments is absorbed by stabilisation instead of regulating
behaviour. Luhmann, Social Systems (n 3) 110.
8 Luhmann, The Differentiation of Society (n 3) 122.
9 Luhmann derives the terminology from cell biologists Humberto Maturana and
Francisco Varela, who developed the term from Greek (auto = self, poiesis = production) in order to refer to the cell’s self-maintaining chemistry. According to Maturana
and Varela, the term expresses the essential features of living organisms, namely
autonomy and self-referentiality. Maturana and Varela, in turn, derive the term
autopoiesis from an essay on Don Quixote, where Alonso Quixano decides on the path
of arms (praxis=action) instead of the path of letters (poiesis=creation). Autopoiesis, an
invented word referring specifically to the autonomy of organisms, was chosen for its
lack of history. See Humberto R. Maturana and Francesco J. Varela, Autopoiesis and
Cognition: The Realization of the Living (D. Reidel Publishing Company 1980) xvii.
Luhmann’s systems theory transfers the original concept of autopoiesis to social sciences.
10 As Luhmann puts it, ‘Es gibt kein Input von rechtlicher Kommunikation in das
Rechtssystem, weil es überhaupt keine rechtliche Kommunikation ausserhalb des
Rechtssystems gibt. . . . Und es ist eine Konsequenz der These, dass nur das Rechtsystem
selbst seine Schliessung bewirken, seine Operationen reproduzieren, seine Grenzen
definieren kann, und dass keine andere Instanz in der Gesellschaft gibt, die sagen
könnte: Dies ist Recht und dies ist Unrecht.’ Niklas Luhmann, Das Recht Der Gesellschaft
(Suhrkamp Verlag 1995) 69; See also, Luhmann, Law as a Social System (n 4) 100.
52 Theoretical implications of dispute resolution technology