11 Luhmann himself refers to this as ‘operative constructivism’. See Luhmann, Law as a
Social System (n 4) 79.
12 In short, the code cannot be applied to itself. Applying the code to itself would unfold
another paradox. ibid 191–210.
13 ‘Codes and programmes can be observed only as communication. Codes enable us to
distinguish between belonging to the system and not belonging to the system, while
programmes, which attribute the values legal/illegal, are the objects of judgments of
valid/invalid.’ ibid 209.
14 ibid 192–193.
15 ‘. . . self-reference and external reference need to cooperate in the form of normative
closure and cognitive opening, based on normative closure. The system can leave
learning to chance, that is, to external stimuli for which there is no provision in
the system, if it has the capacity to practice changes as changes of valid law and to
weave them into the recursive network of the interdependent interpretations of
norms.’ ibid 109–110. It should be noted that the operative closure becomes a
normative closure in the legal system due to its function of upholding expectations
regardless of disappointments.
16 Luhmann, Social Systems (n 3) 466–468, 475.
17 ibid 210–254.
18 Kenneth C Bausch, ‘The Habermas/Luhmann Debate and Subsequent Habermasian
Perspectives on Systems Theory’ (1997) 14 Systems Research and Behavioral Science
315, 205.
19 Luhmann, Die Gesellschaft der Gesellschaft I (Suhrkamp 1997) 108.
20 Luhmann, Law as a Social System (n 4) 115–116.
21 ibid 381–422.
22 Luhmann describes this as follows: ‘[Structural coupling] is based on a synchronicity of
the system with operations that the system attributes to the environment, for instance,
with the possibility of fulfilling a legal obligation by making a payment or symbolizing
political dissent or consensus by passing a law. However, operative couplings between
the system and the environment brought about by such identifications are possible
only for the duration of the event. They do not last and they depend on a certain
ambiguity in their identification. The identity of such individual events is, in fact, in
the recursive network of the individual system. The economic aspect of payment,
which relates to the reuse of money, is quite different from the legal aspect, which
relates to the change in the legal situation induced by the payment.’ ibid 380.
23 ibid 384.
24 See e.g. Thomas McCarthy, ‘Complexity and Democracy: Or the Sediments of
Systems Theory’ in Axel Honneth and Hans Joas (eds), Jeremy Gaines and Doris L
Jones (trs), Communicative Action: Essays on Jürgen Habermas’s The Theory of Communicative Action (MIT Press 1991) 133–134; Andreas Fischer-Lescano, ‘Critical
Systems Theory’ (2012) 38 Philosophy and Social Criticism 3, 3.
25 McCarthy (n 24) 133–134; See also Bausch (n 18) 326.
26 On reflexive law see, Günther Teubner, ‘Substantive and Reflexive Elements in
Modern Law’ (1983) 17 Law & Society Review 239; For an analysis of reflexive law
within private transnational regimes see Gralf-Peter Calliess, ‘Reflexive Transnational
Law: The Privatisation of Civil Law and the Civilisation of Private Law’ (28 June 2010).
23 Zeitschrift für Rechtssoziologie185–216, available at SSRN: https://ssrn.com/
abstract=531063 (accessed 17 June 2018; Also, Hydén discusses reflexive elements
within the Scandinavian context. See closer, Håkan Hydén, ‘Towards a Theory of Law
and Societal Development’ (2014) 60 Scandinavian Studies in Law 443.
27 ‘Überdies ist die Vorstellung des Programms belastet durch die Absicht, damit eine
Synthese von Theorien der “kritisch-emanzipativen” Richtung mit Vorstellung uber
“responsive Dogmatik” und mit soziologischen Analysen des “Rechtsystems”
Understanding law and technology 53
Social System (n 4) 79.
12 In short, the code cannot be applied to itself. Applying the code to itself would unfold
another paradox. ibid 191–210.
13 ‘Codes and programmes can be observed only as communication. Codes enable us to
distinguish between belonging to the system and not belonging to the system, while
programmes, which attribute the values legal/illegal, are the objects of judgments of
valid/invalid.’ ibid 209.
14 ibid 192–193.
15 ‘. . . self-reference and external reference need to cooperate in the form of normative
closure and cognitive opening, based on normative closure. The system can leave
learning to chance, that is, to external stimuli for which there is no provision in
the system, if it has the capacity to practice changes as changes of valid law and to
weave them into the recursive network of the interdependent interpretations of
norms.’ ibid 109–110. It should be noted that the operative closure becomes a
normative closure in the legal system due to its function of upholding expectations
regardless of disappointments.
16 Luhmann, Social Systems (n 3) 466–468, 475.
17 ibid 210–254.
18 Kenneth C Bausch, ‘The Habermas/Luhmann Debate and Subsequent Habermasian
Perspectives on Systems Theory’ (1997) 14 Systems Research and Behavioral Science
315, 205.
19 Luhmann, Die Gesellschaft der Gesellschaft I (Suhrkamp 1997) 108.
20 Luhmann, Law as a Social System (n 4) 115–116.
21 ibid 381–422.
22 Luhmann describes this as follows: ‘[Structural coupling] is based on a synchronicity of
the system with operations that the system attributes to the environment, for instance,
with the possibility of fulfilling a legal obligation by making a payment or symbolizing
political dissent or consensus by passing a law. However, operative couplings between
the system and the environment brought about by such identifications are possible
only for the duration of the event. They do not last and they depend on a certain
ambiguity in their identification. The identity of such individual events is, in fact, in
the recursive network of the individual system. The economic aspect of payment,
which relates to the reuse of money, is quite different from the legal aspect, which
relates to the change in the legal situation induced by the payment.’ ibid 380.
23 ibid 384.
24 See e.g. Thomas McCarthy, ‘Complexity and Democracy: Or the Sediments of
Systems Theory’ in Axel Honneth and Hans Joas (eds), Jeremy Gaines and Doris L
Jones (trs), Communicative Action: Essays on Jürgen Habermas’s The Theory of Communicative Action (MIT Press 1991) 133–134; Andreas Fischer-Lescano, ‘Critical
Systems Theory’ (2012) 38 Philosophy and Social Criticism 3, 3.
25 McCarthy (n 24) 133–134; See also Bausch (n 18) 326.
26 On reflexive law see, Günther Teubner, ‘Substantive and Reflexive Elements in
Modern Law’ (1983) 17 Law & Society Review 239; For an analysis of reflexive law
within private transnational regimes see Gralf-Peter Calliess, ‘Reflexive Transnational
Law: The Privatisation of Civil Law and the Civilisation of Private Law’ (28 June 2010).
23 Zeitschrift für Rechtssoziologie185–216, available at SSRN: https://ssrn.com/
abstract=531063 (accessed 17 June 2018; Also, Hydén discusses reflexive elements
within the Scandinavian context. See closer, Håkan Hydén, ‘Towards a Theory of Law
and Societal Development’ (2014) 60 Scandinavian Studies in Law 443.
27 ‘Überdies ist die Vorstellung des Programms belastet durch die Absicht, damit eine
Synthese von Theorien der “kritisch-emanzipativen” Richtung mit Vorstellung uber
“responsive Dogmatik” und mit soziologischen Analysen des “Rechtsystems”
Understanding law and technology 53