Systems theory of law
The systems theory of law is a sociological theory of the legal system . It is a recent development in legal theory that emerged under the influence of sociological systems theory , which examines the relationship between law and society in the sense of a socio- theoretical reflection of law.
In the context of globalization , systems theory of law also deals with the various state and non-state legal systems in world society. These are understood as parts of a global legal system in which each partial legal system fulfills a regulatory task that no other can undertake on its own and that interact with one another.
The system theory draws conceptually as well as conceptually on cybernetic models as well as on models for the description of biological systems , which are mainly used for the abstract description of " life ", of the steady state in metabolism or in ecological models .
The mainstream is characterized by the concepts of Niklas Luhmann and Gunther Teubner ; however, there are also other system-theoretical influences. Other important contributions come from Gralf-Peter Calliess , Andreas Fischer-Lescano , Werner Krawietz , Dan Wielsch and Thomas Vesting .
Law as a social system
Systems theory invariably observes everything observable (including the observer) as systems of different sizes, structures and complexity. A system is constituted by the distinction - the so-called leading difference - between the system and the environment, i. H. from inside and outside". Systems react according to their own structures to the environmental stimuli they receive - i. H. Information - with a change of state of itself. This change of state can in turn be received by another system (whose environment is also the aforementioned system) as an environmental stimulus / information and is thus converted into a change of state by this.
“Each type of system is the necessary environment of the other. People cannot arise and exist without social systems, and the same applies vice versa. "
This "operational closedness" with simultaneous "informational openness" is described in the tradition of cybernetics by two concepts: that of autopoiesis and that of structural coupling (a special case of the latter Luhmann named interpenetration ).
Accordingly, an autopoietic system then arises and exists only as long as self-referential operations take place; their emergent structures are the system. Example: Society consists only in communication; cf .: a biological cell exists in life.
Systems are structurally coupled if one system is capable of informationally perceiving the operation of another system as an environmental stimulus. Example: the hearing reacts to sound waves in the physical environment; The legal system reacts to a person who turns to it as a “plaintiff”.
The fundamental operation that differentiates all social systems from the non-social environment is communication , understood as the unity of communication, information (meaning) and understanding . The totality of all communications is “society” in system theory.
"No human being can communicate (in the sense of completing communication) without constituting society, but the social system itself is (precisely for this reason!) Unable to communicate: it cannot find an addressee outside of itself."
The system theory of law encompasses the legal system as the entirety of all legal communications , i.e. all communications that follow the key difference “legal - non-legal” (i.e. communication that postulates legal validity).
Autopoiesis of the legal system
According to this, the law is understood as a subsystem of society alongside other subsystems such as economy, politics, education, religion, etc., which have historically differentiated themselves based on a specific function for society , i.e. H. have become independent in their operations compared to other systems.
Autopoiesis of law means that no legal information can derive its normativity from the environment, but validity can only ever be passed on from legal communication to legal communication. This self-referential reference takes place in the structures of the concrete legal system via legal texts, legal discussions, legal literature and conventions, etc. These structures were in turn created through legal operations in which they enacted, written, applied, commented, remembered, forgotten, contested, interpreted, reformed , abolished, reformulated etc. have been. Legal structure and legal operation are thus in a circular reference context and produce one another. In this sense, the system “maintains itself”.
Structural couplings of the legal system
This operational isolation does not mean, however, that the legal system is "loosing itself" from the actors (those affected, lawyers, politicians, etc.). On the contrary, its existence is conditioned by the informational openness to this environment. It is only through the mutual existence of the systems “person” and “legal system” that legal operations (lawsuits, applications, writing of a legal textbook etc.) and thus law as an emergent structure become possible. The individual conscience (a subsystem of the psyche) also has its own place in systems theory.
Other social systems such as politics , economics , science , morality etc. have structural links with the law. For example, in the constitutional law system, politics is structurally linked to the legal system through a parliament as legislator . Another example would be the economic system, which is structurally linked to the act of buying in the civil law system in the act of exchange on the market . And in the courtroom, where lawyers and / or judges argue with the “banner of justice ”, the legal system is structurally linked to morality.
Luhmann describes certain structural couplings as interpenetration of systems if the coupling has arisen from the systems being of the same origin: For example, state and church only differentiated themselves as different ones at the beginning of the modern era. Couplings that still exist today (e.g. state church law ) are therefore interpenetrations of law and religion.
The structural couplings fulfill the task of making complexity available to other systems in a reduced form. This type of "division of labor" enables the development of highly complex systems from a large number of simply complex systems.
Function of law
A complex open society opens up a multitude of alternative courses of action for the individual. In order to maintain a functioning society as a whole, predictable, binding principles of conduct are required. This service is provided by a specialized subsystem of politics, namely the legal system . According to Luhmann, the legal system is a system downstream of the political with the function of legitimizing and enforcing the general decisions made in the political system by way of legislation and the absorption of conflicts that are bindingly decided in individual court proceedings.
Luhmann thus assigns law a teleological end in itself (stabilization). The function of the law is to differentiate between legal issues and whether it is right or wrong and thus to coordinate and deal with contingency . The law thus guarantees personal freedom and at the same time restricts it for the benefit of everyone.
Criticism of the systems theory
One point of criticism raised against the law as a pure communication system is that this theory, contrary to social reality, only accepts communication flows as system elements and thus has no place for actors and their actions. Legal communication can only be based on system operations that already belong to the system ( operational cohesion ). It does not respond to communications belonging to another system, e.g. B. Bribes or lobbying . The thesis of the autopoietic independence of the legal system must be abandoned in favor of its political foundation.
The assumption of autopoiesis also means a circular process that makes a final justification of the law impossible. According to this, law can only legitimize itself with reference to itself. Jürgen Habermas tries to overcome this shortcoming with the discourse theory of law .
Systems theory denies both the historical development of law and its references to over-positive natural law , for example in the preamble of the Basic Law or Radbruch's formula .
Gunther Teubner and Helmut Willke derive from Luhmann's idea of the autopoietic closedness of social systems the inability of politics and law to control the other functional systems of society, especially the economy. The ability of the law to regulate is also called into question in view of increasing social complexity , criticism of the tasks of the state ( deregulation ) and with regard to guaranteeing internal security .
According to Klaus F. Röhl, the system-theoretical linguistic style obscures the relationships rather than illuminating them. Occasionally, style blossoms grow out of this , which are good as a quotation without context for a satire.
literature
- Niklas Luhman: The law of society. Suhrkamp, Frankfurt am Main 1995, ISBN 3-518-28783-4 .
- Niklas Luhmann: The unity of the legal system. In: Legal Theory. 1983, 129, p. 137.
- Gunther Teubner: Law as an autopoietic system. Suhrkamp, Frankfurt am Main 1989, ISBN 3-518-57982-7 .
- Gunther Teubner: Global Bukowina. On the emergence of a transnational legal pluralism. In: Legal History Journal. 15 (1996), pp. 255-290.
- Anthony D'Amato: International Law as an Autopoetic System. In: Rüdiger Wolfrum, Volker Röben (Ed.): Developments of International Law in Treaty Making. Springer, Berlin / Heidelberg / New York 2005, ISBN 3-540-25299-1 , pp. 335-399.
- Reinhard Damm: Systems Theory and Law. On Talcott Parsons' theory of norms. Duncker and Humblot, Berlin 1976, ISBN 3-428-03621-2 .
- Thomas Huber: System Theory of Law. The legal theory of Niklas Luhmann. Nomos, Baden-Baden 2007, ISBN 978-3-8329-2483-6 .
- Thomas Vesting: No beginning and no end. The system theory of law as a challenge for jurisprudence and legal dogmatics. In: Law. 2001, pp. 299-305.
Web links
- Klaus Eder : The authority of law: a social critique of procedural rationality Zeitschrift für Rechtsssoziologie 1987, pp. 193-230
- Gralf-Peter Calliess: System theory: Luhmann / Teubner. In: Sonja Buckel , Ralf Christensen, Andreas Fischer-Lescano (eds.): New theories of law. Lucius and Lucius, Stuttgart 2006, ISBN 3-8282-0331-0 , pp. 57-75
- Samuel Klaus: De- / regulation. A legal conceptual analysis including the system theory Norderstedt, 2007. ISBN 978-3-8334-9272-3
Individual evidence
- ↑ Jochen Bung: System theory of the law in: Eric Hilgendorf , Jan C. Joerden (Ed.) Handbuch Rechtssphilosophie . JB Metzler, Stuttgart 2017, pp. 264–270
- ^ Lars viellechner: constitution as a cipher. On the convergence of constitutional and pluralistic perspectives on the globalization of law ZaöRV 2015, pp. 233, 250 ff.
- ↑ Niklas Luhmann: Social Systems. 1983, p. 92.
- ↑ Niklas Luhmann: The unit of the legal system. In: Legal Theory. 1983, 129, p. 137.
- ^ Klaus F. Röhl : Niklas Luhmanns legal sociology legal sociology online. de, § 9, accessed on September 23, 2017
- ^ System theory: Niklas Luhmann 122nd event of the Humboldt Society on August 19, 2001
- ↑ Niklas Luhmann: Differentiation of the law. Suhrkamp, 1999. ISBN 978-3-518-29018-7
- ↑ Alban Knecht: Is the Right Right? Law and legitimation in the 18th century and today 2004, p. 4
- ↑ Niklas Luhmann: Contingency and law-legal theory in an interdisciplinary context, ed. and with an afterword by Johannes FK Schmidt, Suhrkamp 2013. ISBN 978-3-518-58602-0
- ↑ Horst Pötzsch : Functions of the Right bpb , December 15, 2009
- ^ Klaus F. Röhl : Law as an autopoietic system legal sociology online. de, § 70, as of January 2011
- ↑ Eckard Bolsinger: Autonomy of the Law? Niklas Luhmann's sociological legal positivism - A critical reconstruction PVS 2001, pp. 3–29
- ↑ Alban Knecht: Is the Right Right? Law and legitimation in the 18th century and today 2004, p. 11 f.
- ↑ Gunther Teubner, Helmut Willke: Context and Autonomy. Journal of Legal Sociology, 1984
- ↑ Oliver Lepsius : Steering Discussion, System Theory and Critique of Parliamentarism . Mohr Siebeck 1999. Goggle Book
- ↑ Jörg Bogumil : State Tasks in Transition without a Year, accessed on September 23, 2017
- ↑ Sven Opitz: At the limit of the right. Inclusion / exclusion under the sign of security ( memento of the original from September 23, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Velbrück Wissenschaft, Weilerswist 2012
- ^ Klaus F. Röhl : Law as an autopoietic system legal sociology online. de, § 70, as of January 2011