Interaction Between Risk And Law From The Perspective Of System Theory

Risk should be handled by law, and the law handling risk will bring about new risks. This is so-called circular interaction between risk and law. Such interaction is to be considered from the perspective of system theory as it is not only decided by risk and law itselves, but also influenced by other background factors. Such interaction reflects the process and rule of development of laws and is a pattern or approach to observe and analyze laws as well. Especially when modern society is stepping into an age of risk and the field of economic law is featured by its countermeasures to risks, the observation and analysis of legal problems of major risks through such an interactive pattern from the perspective of system theory is of significance to accumulate experience of risk management and extend research fields.Niklas Luhmann's systematic analysis mode is pretty interpretative among all the understandings to interaction between risk and law. According to this mode, modern society is a complicated social system of functional differentiation; hence law shall be regarded as a secondary social system paralleled with economic system, political system, educational system and scientific system in order to make modern society less complex and fewer contingents. Therefore, one of the features of legal system lies in its autopoietic, namely, on the premise that all other paralleled systems make its environment, legal system operates according to its own codes and patterns and make use of various risk stimuli to realize its structural coupling, during which it is shown as a system closed in regulation and open in cognition and running according to binary code of being legal or illegal or a conditional pattern (legal texts).Furthermore, interaction between risk and law from the perspective of system theory covers two points. On one hand, legal system has to face troubles caused by its internal risks and try to perfect its autonomy through eliminating risks generated from its own decisions. On the other hand, legal system has to accept challenges from external risks. That is to say, it has to respond to risks from environment, such as political, economic, environmental, ecological, educational and technical problems.When handling internal risks, it is the problem how to resort to judicial decisions and organization system of the court to eliminate risks in judicial adjudication when the legal system in modern society is a hierarchical structure centering on court and judges'adjudication. Actually, it is a vital problem to make right legal decisions when disappointed with inappropriate legal decisions so as to maintain stable expectation or functions of law. Then, legal system is required to provide some specific solutions.For instance, to some extent, it can transfer risks and their causes to legal rules to decide what is legal or illegal and for example, legal system shall be divided into some internal organizations which abide by legal authority systematism and professionalism for the purpose of reducing or lowering risks in judicial adjudication.As for the external risks, when law respond to risks, the legal system shall abide by the rule of structural coupling between functional systems, but not the simple input-output model in traditional sense. More specifically, its connotation covers two points. Firstly, legal system must respond to damages caused by risks in the environment in its special way. Therefore, the real important issue for legal system is not only whether legal system can keep its communication with other systems, but also whether it can construct its own continuity and creativity when communicating with other systems. Secondly, the response of law to risks is substantially a problem how to face the future. Therefore, from the perspective of temporal dimension, it is the expectation of the future through its constraint to time and from the perspective of social dimension, it observes its relations with others. That is to say, at present a person shall anticipate how others will act in the indefinite future.To put it briefly, in Niklas Luhmann's system theory about interaction between risk and law, the study on how law handles risks is to probe how legal system observes and handles risks rather than to seek for specific strategies to solve the problem of risks.From such a perspective, some conclusions are made through the analysis of some remarkable current cases in China in financial risk, food security and distributive justice.Firstly, when financial risks are scanned according to different observation patterns such as risk/security, risk/ benefit, and risk/culture, self-contradiction will be generated to countermeasures; therefore a common view can hardly be reached as for supervision. However, such a situation can be avoided when scanned from the perspective of system theory.Secondly, although food crisis caused by development in science and technology will break the chain of causation in the world of experience and so the effect of causer principle is restricted, it can still be assumed in law that risk is a controllable object and risk is diversified through a redistribution of liability according to precautionary principle and risk assessment. Thirdly, as for distribution justice caused by risks, China's economic law of distributive function, according to a problem-oriented approach, may try to relieve the contradiction that those who hold the least fortune in the society have to bear the largest risk through reinforcing government's responsibilities and bringing distribution justice into the goal of social distribution system reform.All in all, the systematic analysis of interaction between risk and law in China can benefit the study of China's economic law in some ways. Firstly, in risk management, there shall be clear boundaries between politics, economy and laws so that government can take moderate supervision but will not expand its right unlimitedly. Secondly, direct interference of policy to laws shall be decreased and especially, a tendency of turning law into policy shall be prevented. Thirdly, since the problem of risk is complicated, dynamic and polynary, a second-order observation pattern shall be taken to ponder over and deal with it.