System, Society And Law: An Investigation Into Niklas Luhmann's Theory Of Legal System

As one of the most important and creative social theorists in the second half of the twentieth century, Niklas Luhamnn has introduced system theory in the discussion of social theory and made significant theoretical contributions to sociology, including the sociology of law. In German, Europe and all the world, Luhmann's original and profound insights of Society have raised widespread concern and heated discussions. At the same time the complexity and the high abstraction of Luhmann's thinking make it very difficult him to read and understand. The aim of this thesis is to elaborate and discuss Luhmann's theory of Legal System within the framework of his general system theory and society theory, in order to promote the research on Luhmann's theory in China.According to the logic of Luhmann's thinking, legal system is a differentiated functional sub-system in society, more generally speaking, it s system. Therefore, in order to understand Luhmann, first of all man has to know his "general system theory" and "theory of social system". The "Introduction" makes clear the classification and different levels of systems and system theories, so that the reader can obtain an overview of Luhmann's thought. In accordance with this theoretical structure, this thesis is also divided into three parts.Luhamnn's general conception of system will be addressed in the first part "An Introduction to system theory". The first chapter introduces the distinction of open system and closed, "open" means there is a exchange relation between system(the exchange of energy or information and so on). All the systems in Luhmann's sense are open systems. The second chapter explore the general conception of system in terms of the observation of system, that is, all the systems are observers in the sense of british philosopher George Spencer-Brown, all observations are setting difference. The system itself is a difference and the reproduction of the difference, the difference between of system and its environment. And the third chapter elaborate the conception of system from the point of of complexity of system. The complexity of system comes from the association of its constituent element. We can say, for a system there are so many constituent elements that the system is not able to associate all the elements simultaneously. The system has to choose which element should be associated with which of the others. The complexity of system leads to the selectivity of the system. The forth chapter deals with Luhamnn's concept of autopoiesis. In Luhmann's view, all the systems all autopoietic, this means, the system produces itself by virtue of its own recursive network. Every operation of the system can perform only with reference to this recursive network and every operation is the confirmation and reproduction of it. In another word, every system is the product of itself.The second part concentrates on Luhmann's theory of social system. The fifth chapter introduces the "communication" as the element of the social system which is constituted of three parts "information", "conveying" and "understand". In a social system there is only communication, nothing else (for example consciousness). The sixth chapter explore the "meaning" in social system. Social system is a system of meaning. Its operations performs in the form of meaning. The seventh chapter analyses the classification of social system. Luhmann points out, there are three kinds of social system:"interaction", "organization" and "society". In this chapter we will elaborate society by means of comparison of society with interaction and organization and further research the forms of differentiations within the society, particularly the dominant form of differentiation in modern society:the functional differentiation.From the third part of this thesis we will begin to visit Luhmann's theory of legal system. The eighth chapter summarize the system theoretical patter of law:law can not perceived as "the whole of the legal norms" or as "legal professional community" or "legal professional organization", instead, law should be understood as a autopoietic, selfreferential functional system that is composed of the communications which belong to legal System. The ninth chapter discusses the function of legal system. In luhmann's view, the sole function of law is maintenance of the normative expectations despite of disappointments, because it's for solving this social problem that the law system is differentiated in the society and comes into being, although there can be many descriptions of it from different perspectives. The theme of tenth chapter is the "code" and "program" of legal system. The legal system uses "legal/illegal", as a schema of distinction, to observe everything. The code enables it to distinguish between "belonging to" and "not belonging to", that is, only the communications that use the code "legal/illegal" can be identified as legal communications. On the other side. The coding produces two states to which future communications can be linked and program regulate the using of the binary code by virtue of deciding in which case the "legal" should be applied, in which case the "illegal" should be applied.The eleventh chapter analyse the justice that Luhmann treats as a formula for contingency of legal system. This formula demands the the operation should perform in such a way so that it fits best for the recursive network of legal system. The meaning of justice for legal system is ensuring the autopoiesis of the system. The twelfth chapter investigate the evolutions of law. Luhmann seeks to reinterpret the history with a scheme of the Darwin's evolutionary theory:"Variation", "Selection" and "Maintenance". The focal point of this chapter is the meaning of writing for legal system. It's writing that leads to distinction of "text" and "interpretation" which enhances the adaptability of law for unforeseen situations, this means, enhances the ability of handling the complexity. The thirteenth chapter research the court in legal system. Luhmann argues that intern differentiation in legal system takes the form of "centre" and "periphery". The court occupies the center and the other structure(for example the legislation) form "periphery. The difference of the "centre" and the edge is that the centre takes the responsibility of "must make decision", while periphery has not to. Therefore the periphery can be more open to environment and constitute in the system the "contactzone" to environment, while the court as the center works under a high degree of self-isolation.The fourteenth chapter, following Luhmann's instruction, defines the concept of legal Argumentation with the scheme "information" and "redundancy" that comes from the information theory. With redundancy legal system can regulate its dealing with information, for example, which information should be concern and in which way they should be handled. The redundancy operates as orientation-and control mechanism for legal argumentation. And legal system itself determines its redundancy formula. The topic of fifteenth chapter is the self-description of legal system. A self-description is the presentation of unity of system in the system. With the self-description the system can know what itself is. The function of the self-description is to provide a stable self-reference-point for system to which the operations can be linked. Not all the descriptions of system can be its self-description. Only the description which accept the restrictions that the system itself takes can be the self-description, for example, a self-description of the legal system has to observe the operations in terms of "conflict" and "solving the conflict" so that it seems there is a sole right answer for each case. And self-description must make the paradox of the legal system invisible by virtue of admitting that the distinction of "legal" and "illegal" is legal. A external description needs not to let itself be restricted by the system. But it is just for this reason it can not be the self-description of the legal system.The "Conclusion" summaries the whole thesis and makes critical reflections of Luhmann's theory by distinguishing the "equal functional differentiation" and the "unequal functional differentiation".