Legitimation through procedure

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Legitimation through proceedings is a work by Niklas Luhmann on the system theory of law , which was first published in 1969.

Procedure instead of universal truth

Luhmann first states that decision-making processes such as legislative , administrative and judicial proceedings cannot be based on truth in the scientific sense and, as a departure from the idea of ​​natural law, legal regulations are primarily of a legal positivist nature and thus not universal.

Communication between those involved in the proceedings cannot guarantee the establishment of the truth. For example, a decision found after discussion in a democratic vote is not necessarily “right” in the sense of “universally true”, and the postulate of legal peace and legal certainty in court proceedings shows that decisions recognized as incorrect in retrospect remain valid.

While truth in the scientific sense is self-evident, what is true and right must claim other validity grounds in the social process in order to be accepted as valid by the addressees of the decisions. In this context, Luhmann points out that both truth in the social-scientific sense (namely intersubjectively compelling certainty) and power serve the intersubjective transfer of complexity-reduced facts and decisions. The transfer of such complexity-reduced decisions is the goal of legally regulated procedures. In contrast to the adoption of self-evidenced scientific truths, however, the adoption here - because self-evidence is not given - a special reason for recognition. Luhmann defines this reason for recognition in the legitimacy , which he equates with binding validity.

Legitimation through social procedures

In today's individualized societies, this can no longer be traced back, or no longer solely, to the ideas of the individual individuals, since the standards of the individuals differ too greatly and, due to the diversity and complexity of the topics, not everyone can have an opinion on every topic, but rather must also be generated by the political-administrative system itself. For this to happen, a social environment must emerge in which the (generalized) binding recognition of decisions is institutionalized as a matter of course.

One factor in the creation of legitimacy in the political-administrative system among others is that through (social) procedures. According to Luhmann, procedures in this sense are not procedures in which all steps and their sequence are already defined. Rather, what is characteristic of social proceedings is that, depending on the behavior of those involved in the proceedings, they open up several possible course of proceedings. It was only through their selective actions that the participants excluded more and more alternative courses of the procedure and thus steered towards a concrete result.

The legal standards , which set the conditions for process are not to be equated to Luhmann by the method itself; justification through these legal norms is not already legitimation through procedures. The procedural rules merely reduced complexity by restricting the possible behavior of those involved. It is precisely the function of legally regulated procedures to leave open behavioral options in order to enable those involved in the procedure to accept behavioral roles .

The importance of procedural roles

According to Luhmann, the formation of procedural roles leads to a separation of roles between procedural roles and roles from the procedural environment. For example, a member of parliament, in his role as a member of parliament, cannot promote the interests of the canning industry by selling canned food, but only by participating in votes or influencing votes.

While those involved in a social process could only be motivated by their other roles in accordance with the procedural system, the process also shields them from responsibility for the consequences of procedural acts in their other roles, since those not involved in the process from other role relationships have the inherent laws of the process and thus also have to accept its results. A party involved in the proceedings could only be accused of having behaved inappropriately in accordance with the respective social procedure.

This relative autonomy of the procedure at the behavioral and role level contributes to the social generalization of the result and thus to the creation of an environment in which the binding recognition of decisions (i.e. legitimacy) is institutionalized as a matter of course.

Those who are not professionally involved, for example the parties to court proceedings, would be motivated to participate in the proceedings by their own interest in the subject, the certainty that a decision will be reached and the uncertainty (due to the possible alternative courses of the proceedings) as to which decision would be taken will be felled. Because in order to limit this uncertainty more and more, they can assume a procedural role and then try to rule out alternative courses by taking procedural acts.

See also

literature

  • Niklas Luhmann: Legitimation through procedures . 6th edition, Suhrkamp, ​​Frankfurt am Main 2001. ISBN 3-518-28043-0

Web links