A Purified Sociology of Law: Niklas Luhmann on the Autonomy of the Legal System

2021 ◽  
pp. 229-248
Author(s):  
Hubert Rottleuthner
Keyword(s):  
Legal System ◽  
Sociology Of Law ◽  
Niklas Luhmann

Moral communication and legal uncertainty in small and medium enterprises

Kybernetes ◽  
2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Jan Winczorek
Keyword(s):  
Systems Theory ◽  
Legal System ◽  
Social Systems ◽  
Functional Differentiation ◽  
Theoretical Issue ◽  
Sociology Of Law ◽  
Content Type ◽  
Moral Communication ◽  
Study Results ◽  
Legal Uncertainty

PurposeThe links between moral communication and legal communication have long been studied in sociology of law. Little has yet been said about moral communication invoking when communication in the legal system is impossible, ineffective or uncertain. The paper fills this gap to demonstrate that systems theory-based sociology of law can effectively recognise the role of moral communication in such situations.Design/methodology/approachThe paper presents an empirical study of moral communication in small and medium-sized enterprises (SMEs). It focused on situations when SMEs' interactions with function systems, particularly the legal system, result in irremovable legal uncertainty. The data depict strategies of managing such uncertainty and were obtained in a paths-to-justice survey of 7,292 owners and managers of SMEs and 101 in-depth interviews. The findings are interpreted using the author's concept of “uncertainty translation”, rooted in Luhmann's systems theory. It suggests that business organisations such as SMEs deal with the ubiquitous uncertainty in their operations by translating it into a convenient type.FindingsThe study distinguishes between formative and absorbing moral communication and finds that both types play a role in steering the uncertainty translation mechanism in SMEs. Six scenarios of invoking moral communication are identified in SMEs dealing with legal uncertainty. In such scenarios, moral communication facilitates the translation of business uncertainty “away from law”. Under some circumstances, this, in turn, leads to latent systematic results, reflexively affecting the legal system, the economic system and the SMEs.Research limitations/implicationsIn its core argument, the study is based on qualitative material. While it identifies empirical scenarios of invoking moral communication, it does not report the prevalence of these scenarios due to methodological limitations.Originality/valueThe study results pose questions related to the staple theoretical issue in post-Luhmannian social systems theory: functional differentiation. If moral communication–a type of communication not linked to any social system–can produce far-reaching, systematic results that affect function systems, then the functional differentiation thesis should be less pronounced than Luhmann typically stressed. This said, the paper argues that the contradiction between the findings and Luhmannian theory of morality is only apparent and may be reconciled.

scholarly journals Contrasting differences in identity and agency between narrative and autopoietic systems

2013 ◽  
Vol 69 (1) ◽  
Author(s):  
Nico Buitendag
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Narrative Identity ◽  
Niklas Luhmann ◽  
Autopoietic Systems ◽  
Identity And Agency ◽  
Role Players ◽  
The Law ◽  
Legal Subjects

The article aims at contrasting the autopoietic understanding of an individual and her or his actions as described by Niklas Luhmann with Paul Ricoeur’s notion of narrative identity, focusing on people as legal subjects. The article assumes that when legal subjects necessitate ethical engagement and evaluation, the law could cease to deal with problems in a mere legalistic fashion but is allowed the freedom to appeal to norms of justice external to itself as in other natural law theories. Through narrative identity the deeds of role players are to be understood in greater complexity than what a self-referential legal system is comfortable in dealing with.

scholarly journals Legal Autopoiesis and the Capital/Revenue Distinction

2007 ◽  
Vol 38 (3) ◽  
pp. 489
Author(s):  
Wai Boh Ding
Keyword(s):  
Legal System ◽  
Niklas Luhmann ◽  
Autopoietic System

This paper attempts to use the theory of legal autopoiesis to understand the struggle the courts have experienced when asked to decide tax cases involving the capital/revenue distinction, which is a distinction that could not be determined by any criteria. The theory of legal autopoiesis, as propounded by Niklas Luhmann, posits that the legal system, as an autopoietic system within society, produces and reproduces its own elements self-referentially and recursively. The legal system operates according to its code, which comprises the values 'legal/illegal'. The code is complemented and filled by programmes, which must be suitable and help to allocate the values in particular situations. However, if there are no programmes, how does the legal system allocate the values? The lack of a definite set of rules that can be used in tax cases to determine whether an item is capital or revenue in nature means that there is no programme according to which the legal system can allocate the values. This lack exposes a critical weakness in Luhmann's theory of legal autopoiesis.

Law in Asia: The Key Role of Law as a Productive Force for Development

2009 ◽  
Vol 2 (1) ◽  
Author(s):  
Klaus A. Ziegert
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Political System ◽  
The Political ◽  
Sociology Of Law ◽  
Legal Change ◽  
The Rule Of Law ◽  
Comparative Sociology ◽  
Local Populations ◽  
Structural Adaptability

The paper focuses on the potential of comparative sociology of law as an instrument for analysing the effective operation of law in society. This approach links normative and empirical approaches to legal research. Applying advanced sociological theory of law, the paper analyses how social and legal change affect development generally, and focuses the analysis on a comparative sample of countries along a geographical route linking Asia with Europe and vice versa, vaguely reminiscent of the historical Silk Roads on land and by sea.Sociological theory suggests analysing social and legal change from the perspective of the dynamics of the functional systems of world society rather than from a normative legal perspective which has individual territorial states and their national state law as a point of reference. The functional systems of world society, such as families (the family system), economics (the economic system), politics (the political system), civil society and law (the legal system) can be seen as both exerting stress on each other and adjusting to this stress by a structural change in local populations with sufficient structural adaptability towards a higher differentiation of all social structures.The rule of law emerges as a special pattern of this structural differentiation which compounds the structural adaptability of above all in the legal system and the political system world-wide. In turn, the rule of law is a condition for increasing the adaptive flexibility of social structures in local populations. The rule of law is, therefore, a crucial element in the on-going development of society. This pattern is not historically given once and for all. nor is it linked to particular forms of government and political systems. Understood in this way, the rule of law is not a normative political or constitutional wish-list but a social phenomenon which can provide comparative sociology of law with a useful set of indicators for describing the development of society and its law.

7. Law and social theory

2020 ◽  
pp. 193-232
Author(s):  
Raymond Wacks
Keyword(s):  
Social Theory ◽  
Michel Foucault ◽  
Legal System ◽  
Karl Marx ◽  
Max Weber ◽  
Emile Durkheim ◽  
Sociology Of Law ◽  
Sociological Perspective ◽  
Jürgen Habermas ◽  
The Subject

This chapter examines the subject of social theory and, in particular, the sociology of law and analyses the leading theories of a number of writers who adopt a ‘sociological perspective’. The theories of Roscoe Pound, Eugen Ehrlich, Émile Durkheim, Max Weber, Karl Marx, Michel Foucault, and Jürgen Habermas are discussed. Each espouses a different approach to the analysis of law and the legal system, but what they have in common is the attempt to explain the role law plays in society. Their contribution is an important one, although it is sometimes questioned whether the sociology of law has an adequate theoretical grounding.

Law and Participation

2009 ◽  
Vol 8 (4) ◽  
pp. 580-601
Author(s):  
Matthias Baier
Keyword(s):  
Legal System ◽  
Genetically Modified Organisms ◽  
Environmental Law ◽  
Genetically Modified ◽  
Sociology Of Law ◽  
The Law ◽  
Internal Operations ◽  
Legal Frameworks ◽  
The Many

AbstractThe main problem discussed in this paper is that the legal system might be dysfunctional to various political participatory ambitions. Participation implies inclusion, but we see examples of exclusion that originate from internal operations of the legal system. Considering the many instances of participatory instruments embedded in legal frameworks in many sectors of society, it is important to ask what kind of problems the law might cause and the reasons behind these problems. With environmental law and regulation of genetically modified organisms (GMOs), as examples, this essay analyses the paradoxical tendencies of the legal system to exclude citizens even when regulations have the purpose of including them. The scientific residence of this essay is sociology of law.

The Failure of Legal Pluralism

2016 ◽  
Vol 18 (2) ◽  
pp. 137-157 ◽  
Author(s):  
Russell Sandberg
Keyword(s):  
Social Control ◽  
Legal System ◽  
Legal Pluralism ◽  
The State ◽  
Legal Order ◽  
Niklas Luhmann ◽  
Legal Norms ◽  
Subjective Approach ◽  
Sharia Law ◽  
Legal Literature

Concerns about legal pluralism, the co-existence of more than one legal system within a state, have become pronounced in recent years, owing to fears about the operation of sharia law in Western societies. At the same time, the concept of legal pluralism has become ubiquitous within legal literature. Paradoxically, the concept is both politically controversial and academically banal. This article contends that a major failing of the concept of legal pluralism has been the inability to distinguish legal norms from other forms of social control. It is suggested that this failure can be overcome by developing the concept of a ‘legal order’ as found in the work of Maleiha Malik and the understanding of law as discourse in the work of the German theorists Niklas Luhmann and Robert Alexy. It is argued that developing these approaches provides a means by which legal norms can be distinguished without adopting either a wholly objective or a completely subjective approach and without focusing exclusively upon the legal norms generated by the state.

Social Engineering through Sharī'a: Islamic Law and State-Directed Da'wa in Contemporary Aceh

2012 ◽  
Vol 19 (3) ◽  
pp. 275-311 ◽  
Author(s):  
R. Michael Feener
Keyword(s):  
Legal System ◽  
Social Transformation ◽  
Islamic Law ◽  
State Power ◽  
Social Engineering ◽  
Moral Authority ◽  
The Political ◽  
Sociology Of Law ◽  
Global Order

AbstractThis study of the contemporary Islamic legal system in Aceh, Indonesia argues for new attention to be paid to the ways in which contemporary Muslim agendas for the implementation of Islamic law can be read as projects for future-oriented social transformation—rather than as a series of reactive measures to perceived 'crises of modernity' and/or the political machinations of rival elites in contesting control of state power. In doing so it highlights the ways in which the ideals of, and institutional formations developed by, proponents of Islamic law are configured in relation to a broad range of non-Muslim modernist projects, including European and American theories of the sociology of law. Through examinations of these influences on discussions of Islamic law in Aceh, this essay demonstrates the degrees to which contemporary Sharīa implementation is inextricably linked to broader configurations of law, moral authority, and state power in the modern global order.

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