43 Although Tuori particularly points out that also normative criticism is not limited to
internal approach but instead fundamental autonomous criticism is normative as well.
See closer, Kaarlo Tuori, Critical Legal Positivism (Ashgate 2002) 29–30.
44 Luhmann, Law as a Social System (n 4) 105. ‘Valuation is left to the observer, and as
an aspect of a system’s self-observation it is possible only within the context of this selfreferential processing of information.’ See Luhmann, Social Systems (n 3) 323.
45 Thomas Wilhelmsson, Critical Studies in Private Law: A Treatise on Need-Rational
Principles in Modern Law. (Kluwer Academic Publishers 1992) 49.
46 Michael King: ‘What’s the Use of Luhmann’s Theory?’ In Luhmann on Law and
Politics. Critical Appraisals and Applications (Oxford: Hart Publishing 2006) 37–52.
47 Luhmann, Law as a Social System (n 4) 78.
48 Vilhelm Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict
Resolution’ (1963) 7 The Journal of Conflict Resolution 26, 26. See also, Vilhelm
Aubert, Rettens Sosiale Funksjon (Universitetsforlaget 1976) 180–186.
49 According to Kuhn, ‘Because the crafts are one readily accessible source of facts that
could not have been casually discovered, technology has often played a vital role in the
emergence of new sciences.’ Thomas S. Kuhn, The Structure of Scientific Revolutions
(University of Chicago Press 1964) 15–16. Similarly, Resnik considers technology
alongside market incentives and legal profession to be “also important parts of the
story of the changing forms of civil dispute resolution”. Judith Resnik, ‘Many Doors?
Closing Doors? Alternative Dispute Resolution and Adjudication’ (1995) 10 Ohio
State Journal on Dispute Resolution 211, 215.
50 See, Klaus Taschwer, ‘Science as System vs. Science as Practice: Luhmann’s Sociology
of Science and Recent Approaches in Science and Technology Studies – a Fragmentary
Confrontation’ (1996) 35 Social Science Information 215, 215.
51 It should be noted that Luhmann considers truth a symbolic medium of communication. This means that truth is a characteristic neither of objects, of sentences or of
cognition but a method of organising the system’s communication autopoetically. It
follows from this that the medium of truth can neither be attributed with rationality or
be seen as a source of knowledge. Niklas Luhmann, Die Wissenschaft Der Gesellschaft
(Suhrkamp Verlag 1992) 173.
52 Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’, in Global Law
Without a State (Brookfield: Dartmouth 1997) 3–28 5.
53 See e.g., Thomas Schultz, ‘Private Legal Systems: What Cyberspace Might Teach
Legal Theorists’ (2008) 10 Yale Journal of Law and Technology 151, 156,163;
Similarly, Calliess and Renner refer to private ordering which translates into a global
governance instrument as it takes over the function of safeguarding normative expectations. Calliess and Renner, ‘Between Law and Social Norms: The Evolution of Global
Governance’ (2009) 22 Ratio Juris 260, 260–280.
54 This follows Luhmann’s position on sources doctrine: ‘The unalterable fact that
legitimacy is based on legal fiction confirms that a concept of validity, which is free
from norms and which can then be conditioned, is more appropriate for dealing with
the discrepancy between the complexity of the system and the actual decisions it
achieves. Seen from the perspective of a history of theories, this concept of validity as a
symbol of the unity of law replaces that of the sources of law and thus replaces the
starting point for all “positivist” theories.’ Luhmann, Law as a Social System (n 4)
123–124.
55 For example, American media theorist Neil Postman considers technology as inherently biased. According to Postman, technological change always has its advantages
paired up with disadvantages and these are not distributed equally between different
groups in society. It should be noted that Postman’s position reflects deterministic
approach to technology. The danger of oversimplification is present in Postman’s
argument as well. A point of interest is that we can contrast this position with the
Understanding law and technology 55
internal approach but instead fundamental autonomous criticism is normative as well.
See closer, Kaarlo Tuori, Critical Legal Positivism (Ashgate 2002) 29–30.
44 Luhmann, Law as a Social System (n 4) 105. ‘Valuation is left to the observer, and as
an aspect of a system’s self-observation it is possible only within the context of this selfreferential processing of information.’ See Luhmann, Social Systems (n 3) 323.
45 Thomas Wilhelmsson, Critical Studies in Private Law: A Treatise on Need-Rational
Principles in Modern Law. (Kluwer Academic Publishers 1992) 49.
46 Michael King: ‘What’s the Use of Luhmann’s Theory?’ In Luhmann on Law and
Politics. Critical Appraisals and Applications (Oxford: Hart Publishing 2006) 37–52.
47 Luhmann, Law as a Social System (n 4) 78.
48 Vilhelm Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict
Resolution’ (1963) 7 The Journal of Conflict Resolution 26, 26. See also, Vilhelm
Aubert, Rettens Sosiale Funksjon (Universitetsforlaget 1976) 180–186.
49 According to Kuhn, ‘Because the crafts are one readily accessible source of facts that
could not have been casually discovered, technology has often played a vital role in the
emergence of new sciences.’ Thomas S. Kuhn, The Structure of Scientific Revolutions
(University of Chicago Press 1964) 15–16. Similarly, Resnik considers technology
alongside market incentives and legal profession to be “also important parts of the
story of the changing forms of civil dispute resolution”. Judith Resnik, ‘Many Doors?
Closing Doors? Alternative Dispute Resolution and Adjudication’ (1995) 10 Ohio
State Journal on Dispute Resolution 211, 215.
50 See, Klaus Taschwer, ‘Science as System vs. Science as Practice: Luhmann’s Sociology
of Science and Recent Approaches in Science and Technology Studies – a Fragmentary
Confrontation’ (1996) 35 Social Science Information 215, 215.
51 It should be noted that Luhmann considers truth a symbolic medium of communication. This means that truth is a characteristic neither of objects, of sentences or of
cognition but a method of organising the system’s communication autopoetically. It
follows from this that the medium of truth can neither be attributed with rationality or
be seen as a source of knowledge. Niklas Luhmann, Die Wissenschaft Der Gesellschaft
(Suhrkamp Verlag 1992) 173.
52 Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’, in Global Law
Without a State (Brookfield: Dartmouth 1997) 3–28 5.
53 See e.g., Thomas Schultz, ‘Private Legal Systems: What Cyberspace Might Teach
Legal Theorists’ (2008) 10 Yale Journal of Law and Technology 151, 156,163;
Similarly, Calliess and Renner refer to private ordering which translates into a global
governance instrument as it takes over the function of safeguarding normative expectations. Calliess and Renner, ‘Between Law and Social Norms: The Evolution of Global
Governance’ (2009) 22 Ratio Juris 260, 260–280.
54 This follows Luhmann’s position on sources doctrine: ‘The unalterable fact that
legitimacy is based on legal fiction confirms that a concept of validity, which is free
from norms and which can then be conditioned, is more appropriate for dealing with
the discrepancy between the complexity of the system and the actual decisions it
achieves. Seen from the perspective of a history of theories, this concept of validity as a
symbol of the unity of law replaces that of the sources of law and thus replaces the
starting point for all “positivist” theories.’ Luhmann, Law as a Social System (n 4)
123–124.
55 For example, American media theorist Neil Postman considers technology as inherently biased. According to Postman, technological change always has its advantages
paired up with disadvantages and these are not distributed equally between different
groups in society. It should be noted that Postman’s position reflects deterministic
approach to technology. The danger of oversimplification is present in Postman’s
argument as well. A point of interest is that we can contrast this position with the
Understanding law and technology 55