Re-Conceptualizing Law and Politics Contributions From Systems Theory

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DOI: 10.1177/0094306106035002092006 35: 123Contemporary Sociology: A Journal of Reviews

Domenico TosiniRe-conceptualizing Law and Politics: Contributions from Systems Theory

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Eleven years after its first German edition1,we can now benefit from Klaus A. Ziegertsadmirable English translation of NiklasLuhmanns most ambitious statement of asociological theory of law, intended as partof a broader theory of society2 or indeed, ateven more abstract level, of a general theory

of social systems.3

According to Luhmann,social systems have to be understood as(operatively closed, to use his expression)networks of communications. Communi-cation is the operation characterizing socialsystems within the more embracing set ofsystems (other members of the set are living,nervous, and psychological systems), and assuch delimits the field of sociology. Amongthe social systems themselves, further distinc-tions have to be drawn between interactions

(based on the co-presence of individuals),organisations (consisting of networks ofdecisions), and societies (the systems thatinclude everything that is social). When itdeals with societies, systems theory is partic-ularly interested in the development of societaldifferentiation. Here, Luhmann distinguishes,within the course of history, four forms ofdifferentiation: segmentary differentiation(the fundamental principle in archaic soci-eties), centre / periphery differentiation(as in

the configuration of most empires), stratifi-cation(characterized by the hierarchy of dif-ferent strata or classes), and, finally,functional differentiation(the organisationalprinciple of modern society).

In functional differentiation, various units,identified as functional (and operativelyclosed) subsystems, maintain their ownautonomy in the fulfillment of distinctivesocial functions. Lawthe central concern of

Luhmanns Law as a Social Systemis oneofthese subsystems, along with the economy,science, the mass media, art, politics, andreligion. The differentiation of all subsystems,including law, is contingent upon a complexsocial evolution which transcends the hierar-chical structure of pre-modern societies. Eachsubsystem consists of specific communicativeprocesses governed by their own criteria,which preclude the interference in its deci-sion-making by external (i.e. environmental)attempts to determine it. As a result, modernsociety has to be understood as apolycentricsocial system. In the case of the legal system,the conventional characterization of modern

law as positive law can be more adequatelyre-conceptualised in system-theoretical termsas an operatively closed network of commu-nications which constantly refers to its ownprevious decisions, expressly based, in turn,on legal principles and procedures (Chap. 2).

Two essential requirements clarify furtherthe differentiation of the modern law (or ofother subsystems). First of all, an appropriatefunctional specification, such that one, andonly one, social function is assigned to law

by the evolutionary processthe stabiliza-tion [over time] of normative expectations.That is, law fixes and establishes socialexpectations which legal procedures haveselected as valid for social interactions, byimmunizing them against counterfactual (to

Contemporary Sociology 35, 2

#2736-CONTEMPORARY SOCIOLOGYVOL 35 NO 2FILE: 35202-REVIEW_ESSAYS

Re-conceptualizing Law and Politics: Contributions from Systems Theory

DOMENICO TOSINIUniversity of Trento (Italy)

[email protected]

White, Harrison and Cynthia White. 1965.Canvasses and Careers. New York: John Wiley.

Wolfe, Tom. 1975. The Painted Word. New York:Farrar, Straus and Giroux.

Niklas Luhmanns Theory of Politics andLaw, by Michael King and Chris

Thornhill. New York, NY: PalgraveMacMillan 2003. 288 pp. $29.95 paper.ISBN: 1403998019.

Law As a Social System, by Niklas

Luhmann, translated byKlaus A. Ziegert,edited by F. Kastner, R. Nobles, D.Schiff, and R. Ziegert. Oxford, UK:Oxford University Press, 2004. 512 pp.$175.00 cloth. ISBN: 098262388.

1 Niklas Luhmann, Das Recht der Gesellschaft.Frankfurt: Suhrkamp 1993.

2 Id., Das Gesellschaft der Gesellschaft. Frankfurt:Suhrkamp 1997.

3 Id., Social Systems. Stanford: Stanford UniversityPress 1995.

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124Review Essays

use Luhmanns expression) circumstances inwhich they are not fulfilled (Chap. 3). In thissense, law chiefly attends to social problemsrelated to the passage of time, bybinding it(p. 142 ff.). The second aspect of the differ-

entiation of modern law is that its internalcommunications relate to one, and only one,specific binary coding (Chap. 4). As with allother subsystems, the operations of lawinvolve assigning one answer ORthe other toa distinctive question, which in the case oflaw can be formulated as: legalor illegal?.Consequently, the legal system can bedefined as the network of communicationsoriented to the legal / illegal code, and whichoperate exclusively by applying such a dis-

tinction on the basis of expressly legal crite-ria (p. 98 ff.).The emphasis this approach places on the

autonomy of law does not mean that this sys-tem is either static or isolated from its envi-ronment, which has other subsystems as itscomponents. On the contrary, law is adynamic system evolving according to specif-ic mechanisms and is connected through cer-tain devices to those other subsystems. Tounderstand the evolution of law, and that of

other social systems, it is useful to cross dis-ciplinary lines and draw on certain theoreti-cal developments in the theory of evolution.In this manner, one can identify the basicmechanisms of legal change (Chap. 6): 1)variationthe communication of someunexpected normative expectation; 2) selec-tionthe decision, through specific legalprocedures (such as court proceedings) toeither accept (positive selection) or reject(negative selection) the new expectations; 3)

maintenance of the (dynamic) stabilityof thesystemperformed by the legal doctrine andhigher courts, which, after positively select-ing new expectations, incorporate them intothe existing system, and at the same timemodify the latter. Generally, the evolution ofthe legal system reflects a tension betweenthe need for an increasing complexity able todeal with the environments demands (so-called requisite variety) and the need forthe internal consistency of legal decision-

makinga need to which the legal doctrineand higher courts attend via specifically legalargumentations (Chap. 8). In highly abstractterms, justice (identified by Luhmann as theformula for the contingency of legal sys-tem) can be understood as the perennial

search for the compatibility between bothneeds. Under modern conditions, it consistsin the adequate complexity of consistentdecision-making (Chap. 5).

The tension between these two elements

(increasing complexity versus consistency)corresponds to the relationship between thetwo most important internal components ofthe legal system, namely legislation and con-tracts (at the peripheryof legal system) andthe courts (at the centre) (Chap. 7). On theone hand, legislation and contracts representthe constant production of variety inside thelegal system by means of ever new expecta-tions, which create their specific bindingeffect on courts decision-making. On the

other hand, this production has to be super-vised and regulated, because it inevitablygenerates problems of interpretation andconsistency. Court activity focuses exactly onthese problems and, in so doing, generatesits own binding effect (i.e. judge-made law)on legislation and contracts. Since the twocomponents constantly observe and influ-ence each other, the relationships betweenlegislation and contracts with the courtsshould be conceived as being symmetricalor

circular, rather than hierarchical.With regard to external relations, again the

autonomy of the legal system does not entailits isolation from other subsystems makingup its environment, such as politics and theeconomy. There are certain forms of connec-tions, certain structural couplingswherebylaw arranges its own relations with othersocial systems. A states constitution, forinstance, can be characterized as the struc-tural coupling between legal and politicalsystems (Chap. 10).4 As such, it allows thetwo systems to exchange both resources andinfluence with one anothera relationshipwhich presupposes the autonomy of bothsystems. Consequently, parallel to the differ-entiation of law, that of the political system(as well as the comparison between them)becomes a further, central topic of systemstheory.

A very significant contribution to this top-

ic, based on an impressive command overLuhmanns massive oeuvre, is made in



4 Id., Verfassung als evolutionre Errungen-schaft, Rechtshistorisches Journal (1990), 9:176220.



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Michael King and Chris Thornhills Luh-manns Theory of Politics and Law. Theirbook includes some significant, recentLuhmanns essays in political theory inacces-sible to the English reader.5 While it is also

concerned with the legal system (Chap. 2),the book chiefly offers an elaborated discus-sion of the political system, focused onLuhmanns political theory and its view of therelationship between that system and law(Chap. 3). Each, as we have seen, is oneamong several subsystems of modern soci-ety. The political one is differentiated by itsspecific function ofproducing collectivelybinding decisionsand by its specific internalcode government/governed (double-coded

in turn, under modern conditions, as the dis-tinction government/opposition). Moreover,like the legal system, the political systemdevelops its own threefold, internal differen-tiation consisting ofpolitics, administration,and the public(p. 86 ff.). What emerges is acomplex argument stressing the specificity ofthe political system, as well as its decen-tralised position within the more compre-hensive system of society. Both facts,however, suggest the unrealistic intent(underlying the expansion of the welfarestate)6 of placing the political system at thecentre of society and charging it with thesolution of an endless variety of problemssuch as ecological ones (Chap. 5). King andThornhill see Luhmanns analysis as involv-

ing an ambitious attempt to de-construct thesemantics of the European tradition, withspecial reference to the Enlightenment(Chap. 5). Luhmann characterized as socio-logical Enlightenment in his attempt, entails

challenging conventional assumptions suchas the anthropocentric perspective dominat-ing modern social thought (there are signifi-cant similarities, here, between his thoughtand Derridas).

Our brief and highly selective presentationof Luhmanns theory of law and politics can-not do justice to its sophisticated theoreticalarchitecture. Each of the points mentionedsignals a most relevant question that bothlegal and political sociology should address,

such as the definition of law and politics, thestructure of modern law and modern politics,the mechanisms underlying their evolution,their internal differentiation and the forms oftheir relations with their environment.Furthermore, I consider most significantLuhmanns commitment to a theory of lawand politics (as well as one of the economy,science, art, mass media, art, and religion) asa part of a coherent framework focusing onthe basic questions of sociologya commit-

ment evident from King and Thornhills con-tribution (esp. Chapters 1 and 6). In thismanner, Luhmann updates the original, clas-sical project for a theory of society, a projectessentially abandoned by contemporary soci-ology, in general, and by legal and politicalsociology, in particular. This is apparent froma perusal of contemporary periodicals, wheretoo often social research appears as a collec-tion of facts, not guided and inspired byappropriate theoretical paradigms. Luhmanns

theory represents one of the most acute con-tributions to overcoming the theoretical defi-ciency affecting sociology today.



5 Id., Die Politik der Gesellschaft. Frankfurt:Suhrkamp 2000.

6 See Id., Political Theory in the Welfare State,Berlin: Walter de Gruyter 1990; see also

Gianfranco Poggi, Niklas Luhmann on TheWelfare State and Its Law, Florence: EUIWorking Paper 1985.


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