A Research On Niklas Luhmann's Autopietic Legal System Theory

Niklas Luhmann is an important social theorist in contemporary German. He introduces the system theories and their new developments into social and legal field, and thereby offers us with some unique insights. He suggests that society is a communicative system, and also a self-referenced and autopoietic system. The types of society have the segmentary, the hierarchy and the function-differentiated. Regarding to legal system, it is differentiated from the function-differentiated society, has its own special function and is a highly autonomous system. Legal system is an autopoietic and communicative system. Autopoietic legal system means that it is both closed and open at the same time, that law (and only law) determines what is and is not law, decides and maintains its own boundary in its own operation or in the constant reproduction of it own elements. Luhmann demonstrates the autonomy of law by showing the autopoiesis of law. This thesis consists of six parts, i.e. introduction, four chapters and concluding words.The introduction is talking about Luhmann's introducing system theory into legal field and dealing with basic questions of jurisprudence, such as what the law is and how it exists, etcetera. In the introduction, I have surveyed how the law of autonomy can be a basic topic of legal philosophy and what some other theorist has said about it, and also showed that Luhmann's autopoiesis is a kind of autonomy differed to the conventional autonomy.Chapter 1 analyzes the sources of the theory of autopoietic legal system, i.e. they are mainly general scientific system theories and Parsons' social system theory. Luhmann traces the recent development in system theory and finds out two new paradigms, i.e. distinction between system and environment, and self-reference (later be termed as autopoiesis). He introduces these paradigms into the social and uses them to reinterpret social and legal questions.Chapter 2 elaborates Luhmann's interpretations to social and legal system by using new paradigms. They include the closure and openness of legal system, self-reference and autopoiesis in the production and reproduction of legal system, code and coded communication of the legal system making its distinction and operative closure, the system's special function, the evolution of the system; the relationship between the legislative and the judicial brought about by the differentiation in the legal system, legal argumentation as an operation of the system, etcetera. These contents can be taken as positive and direct illustrations for the autonomy of law in Luhmann's system theory.Chapter 3 deals with Luhmann's knowledge about the relations between legal system and its environment, i.e. other social subsystems. Luhmann has discussed the relations with economics, politics and morality which are traditionally thought having close connection. These relations, which common legal theories have pay much attention to, were taken as the relations between autopoietic social subsystems in Luhmann's system theory perspective. The contents in this chapter can be seen as indirect justification of the autonomy of law.Chapter 4 explains the status and influences of Luhmann's legal system theory. It has observed different critics to autopoietic legal system theory and stated its consequences and contributions, the probable meaning to Chinese jurisprudence.In the concluding words, what is summarized is basic tenets of autopoietic legal system theory and the way to understand the theory. The conclusion is that Luhmann's theory supports the autonomy of law but is different from the general meaning of autonomy.