How Legal System As A Social System Is Possible:a Self-referential Systematic Epistemology

Modern legal theories seek to provide a complete discourse for legal foundation.This mission ultimately can attribute to the so-called “The Problem of Hobbes’ Order”proposed by sociologist Talcott Parsons: how the social order is possible.This problem presented the flection of the central issue that is the connection between person and society,it has a significance that searched for the foundation of modern social order.In this theoretical context,modern social theory and legal philosophy try to fulfil this task.But these legal and social theories have not noted that there never be consistency and completeness simultaneously in a formal system,and this system itself can not demonstrate the demonstration on itself.This ignorance of G?del’s incompleteness theorem leads to this impossibility that these theories on the level of epistemology could not carry out the completeness of the system.Niklas Luhmann notices this imperfection on epistemology,and tries to construct a self-referential theory of social system on the basis of modern natural science,epistemology and social theory,accordingly law expresses a self-referential social system.In this direction of this theory,“what is the law” which is the fundamental question of legal theory,in the context of“The Problem of Hobbes’ Order”presents this question that is “how legal system as a social system is possible”.For answer it,Luhmann has constructed a theory of legal system in the framework of the theory of social system.He thinks that legal theories all past had used an flat discourse,regarded the law as a self-sufficient or not self-sufficient system,so that ignored there had been self-referential paradox in the discourse,and finally could not demonstrate the completeness of the theory.Luhmann’s work has reconstructed a theory of social system that has these self-referential operations,through introducing Spenser-Brown’s theory of form,Von Foerster’s second-order cybernetics,Maturana and Varela’s theory of autopoiesis,Bateson’s informational theory,and Gunther’s poly-contextual logic,thus interpreted the process of operation in legal system.This practice makes the question “how legal system as a social system is possible” be focus on how to solve the problem about self-reference in legal system.By means of the concept of meaning in phenomenology,Luhmann constructs a semantics of meaning about social system for solving the problem.Social system thus could select many possibilities through this distinction between system and environment,then realize itself the self-inferential operation to maintain the existence and continuity of social system.For this purpose,the legal system as a social system constantly resorts to this distinction,operates to eliminate the tautology and unfold the self-referential paradox.In this process,legal system expresses some different operations in the light of elements,it could keep the boundary between itself and the environment with the help of selections about communication,structure and system,therefore three kind of meaning dimensions that includes the fact dimension,the temporal dimension and the social dimension can be produced,in which legal system operates.In the fact dimension,legal system needs to select the basic elements which constitute the system,in the perspective of second-order observation to distinct the system and the external environment.Legal system on the basis of the eigenvalue of law,unfolds the two-value code of legal and illegal,this code operates in the way of dualization law.This coding operation ensure that legal system can exclude the invasion of other social system’s code.This theory uses a factual theory on the basis of a semantics of meaning.It can solve the self-referential problem of legal communicative theory on the ground of communicative rationality and universal pragmatics.This self-referential operation in legal system can be present as a coding system,this two-value code by projection of itself becomes the attractor of legal system,ensures the stable state of system.However,this code can not determine itself,thus run into self-referential paradox,therefore the concept of time must be brought in.In the temporal dimension,the code in legal system produces programme,realizes the determination of code to itself.Legal system’s operation in terms of this distinction between past and future,realizes time-binding.This bind makes legal system to select structure as a structure of anticipation,shows a kind of expectation to future.The expectation of legal system deals with the distinction between system and environment,simultaneously needs functional equivalence so that reduce the high complex rising from double contingency.The function of legal system thus becomes the stabilization of normative expectations to environment.Legal system need to show the counterfactual of the negation to fact dimension for realizing this function,which requires the distinction purpose-specific programme and conditional programme to distinguish the programme between internal and external.Therefore,legal system in terms of the conditional programme achieves the programming inside the system,namely by means of time-binding realize the unity of system in structure.In the meanwhile,legal system in temporal dimension can not reflect itself so that can not avoid the self-referential paradox,and must enter into the social dimension.In the social dimension,legal system shows an autopoietic system on the grounds of the distinction between system and environment.This system as a social system expresses a self-description on evolution,and thus as a subsystem of society which is the result of functional differentiation.Legal system in terms of self-description roots in the inside,not outside such as psychic system and other systems.And Legal system in terms of the distinction between system and environment realize the observation of ego and alter ego,it can observe the structural coupling between legal system and other social system.In this negative casual framework,as the result of functional differentiation of society,the out-differentiation of legal system itself has realized autopoietic self-production and self-reproduction,expressed a self-referential positive law,and became the immune system of society,finally maintained itself on the level of system.Legal system in terms of the self-referential operation in the three meaning dimensions,leads to itself a meaning constituting semantic system.Meaning as a kind of communicative medium,realizes the operative closure and the cognitive openness between social system and psychic system,between legal system and other social systems.In the meanwhile,legal system can observe the system and the environment in the respective of itself by the distinction between system and environment through the way of re-entry.Thus,legal system’s second order observation ensure the unity of the operation of legal system and the observation of this operation.Only if the second order observation of Legal system as a social system uses the constructivist approach,it can unfold the self-referential paradox,and answer the question that whether system could realize the completeness: legal system’s self-description is incomplete on the first order observation,and have a bounded completeness on the second order observation.The completeness further can lead to three theses:(1)the self-description of legal system on the third order observation is meaningless.(2)legal system has a multiply of expressions about evolution and differentiation.(3)the meaning of legal system is Counterproductive.These thesis constitute of the possible direction of systematic jurisprudence.