By Niklas Luhmann
ISBN-10: 0199546126
ISBN-13: 9780199546121
Smooth structures conception offers a brand new process for the research of society via an exam of the constructions of its communications. during this quantity, Niklas Luhmann, the theory's best exponent, explores its implications for our figuring out of law.
Luhmann argues that present puzzling over how legislations operates inside a latest society is heavily poor. He lays out the theoretical and methodological instruments that, he argues, can enhance our knowing of latest society and particularly of the identification, functionality, and serve as of the felony method inside that society. In structures conception, society is its communications: they're its empirical truth; the goods that may be saw and studied. platforms concept identifies how communications function inside a actual international and the way various sub-systems of communique function along each one other.
In this quantity, Luhmann makes use of structures thought to deal with a query principal to felony conception: what differentiates legislations from different social practices? despite the fact that, in contrast to traditional felony idea this quantity seeks to supply a solution by way of a basic social concept: a technique that solutions the query in a way acceptable not just to legislation, but additionally to the entire different complicated and hugely differentiated platforms inside glossy society, resembling politics, the financial system, faith, the media, and schooling. This sociological process bargains profound insights into the relationships among legislation and different social systems.
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Additional resources for Law as a Social System (Oxford Socio-Legal Studies)
Example text
Law legitimizes itself by legalizing parliamentary democracy. Many politicians are trained lawyers. Some separation of law and politics is suggested by the notion of the rule of law (Rechtsstaat): that politics is held legally accountable. But from the point of view of law, the rule of law adds nothing to positive law. It is a tautology: the rule of law consists of the rules of law. In light of the interpenetration of law and politics on so many levels (theoretical, operational, historical) what is the case for treating law and politics as separate autopoietic sub-systems of society?
This distinction would allow, for example, a successful appeal from a decision arising from an erroneous first-order observation. Secondly, there is the distinction between good and less good reasons for particular interpretations. The fact that second-order observation involves distinguishing between good and less good reasons, leads to theories of argumentation (a thirdorder level of observation, from outside the system) that seek to find reasons for reasons. This is a process of analysis that offers challenges to the concept of operative closure.
The secondary observation of legal coding (legal/illegal) which both develops and compares legal programmes is first and foremost a search for meaning based on consistency. Law's normative closure will have selected the facts and generated the cases that have to be observed using a scheme of equal/unequal. As such, the applications of the distinction equal/unequal within law will be unique to law. Ethics as a system would not select the same facts for the application of the distinction, and would thus not put the same things on either side of the distinction.