Law as a Social System

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Oxford University Press, 2004 - Medical - 498 pages
Modern systems theory provides a new paradigm for the analysis of society. In this volume, Niklas Luhmann, its leading exponent, explores its implications for our understanding of law.Luhmann argues that current thinking about how law operates within a modern society is seriously deficient. In this volume he lays out the theoretical and methodological tools that, he argues, can advance our understanding of contemporary society and, in particular, of the identity, performance, andfunction of the legal system within that society. In systems theory, society is its communications: they are its empirical reality; the items that can be observed and studied. Systems theory identifies how communications operate within a physical world and how different sub-systems of communicationoperate alongside each other.In this volume, Luhmann uses systems theory to address a question central to legal theory: what differentiates law from other parts of society? However, unlike conventional legal theory, this volume seeks to provide an answer in terms of a general social theory: a methodology that answers thisquestion in a manner applicable not only to law, but also to all the other complex and highly differentiated systems within modern society, such as politics, the economy, religion, the media, and education. This truly sociological approach offers profound insights into the relationships between lawand all of these other social systems.
 

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A work of remarkable scholarship by a profound scholar, the late Niklas Luhmann. Briefly, Systems Theory is deep in its philosophical and practical implications and, as such, is hard to come to non-trivial grips with it.Even so it is well-worth the time. A system engenders its environment so as to distinguish itself; the manner in which this occurs deeply influences the meaning and the form of the organization that so makes itself distinct; and so exemplifies a system. Luhman understood Systems Theory broadly in an ontological, methodological way as co-existing with an environment which occurs immediately upon being set up at the most elemental level; he understood complexification from this point on and the important matter of stability. These ideas conceptually need a lot of background to properly understand. The work of George Spencer-Brown (calculus of distinction, and his "laws of form") plays an important role in his thinking. ---- When the concepts of systems theory merge with those of legal theory the task is considerably larger, but, in fact, easier to come to grips with as the abstractions of Systems Theory are realized in relation to concepts of law. Some further references may be added: George Klir's and Francisco Varela's works. THAT these theories grew out of early systems theory is nothing short of a miracle in the sense that academics rarely if ever engage in multidisciplinary ventures of this magnitude -- especially one involving Philosophy and the Sciences together; but this had to do more with the marvelous character of Varela and H. Maturana than a radical change in the relationship of these discipline areas. Finally, clearly, the book is much too expensive, impeding a wider readership -- a pity for a subject with such a bright future.  

Contents

Introduction Richard Nobles and David Schiff
1
The Location of Legal Theory
53
The Operative Closure of the Legal System
76
The Function of Law
142
Coding and Programming
173
Justice a Formula for Contingency
211
The Evolution of Law
230
The Position of Courts in the Legal System
274
Legal Argumentation
305
Politics and Law
357
Structural Couplings
381
The Selfdescription of the Legal System
423
Society and its Law
464
Index
491
Copyright

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About the author (2004)


Prior to his death in 1998, Niklas Luhammn was Emeritus Professor of Sociology at Bielefeld University.
This work has been translated from the original German by Klaus A. Ziegert, and edited by Fatima Kastner, Richard Nobles, David Schiff, and Rosamund Ziegert.

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