Contemporary social theory and law

[O]ne can identify the development of a general legal system as a crucial aspect of societal evolution. A general legal system is an integrated system of universalistic norms, applicable to the society as a whole rather than to a few functional or segmental sectors, highly generalized in terms of principles and standards, and relatively independent of both the religious agencies that legitimize the normative order of the society and vested interest groups in the operative sector, particularly the government. (Parsons, 1964a: 351)

One important dimension of the emergence of a formal, secular, general, autonomous legal system is some kind of codification of norms under principles that are not directly moral or religious (although they generally continue to be grounded in religion), and the formalization of procedural rules that define the situations in which judgements are to be made on a societal basis, especially by courts (Parsons, 1964a: 353). Analytically, the legal system is not to be regarded as a political or religious phenomenon that is concerned with fundamental problems of value orientation involving basic decisions for the system as a whole. Nonetheless, behind proper procedure and the due authorization of law-making bodies lies the deeper set of questions of ultimate legitimation, namely a value system. Law provides a focal point for the relations between religion and politics as well as other aspects of society (Parsons, 1962: 62, 72). Indeed, Parsons remarks on the high level of lawyers’ participation in all levels of government, including the legislature, which means that they interact with the power system and its coercive sanctions (Parsons, 1976: 118–19). This is also true today: the current President of the USA, Barack Obama, and his wife, Michelle, are both lawyers. Parsons also admits that the differentiation of secular government from religious organization has occurred unevenly, even in the modern world. He cites the example of the USA as the location of the furthest example of secularization, indicated by the legal commitment to the separation of church and state. Even so, some US states retain the death penalty as a criminal sanction, which reflects fundamentalist Judeo-Christian values and a pre-modern level of social development.

Interestingly, Parsons does not view the English common law as posing a problem for his conceptual scheme and evolutionary view of history. The organizational independence of the judiciary, its emphasis on the protection of personal rights, the recognition of private property, freedom of contract and protection of contractual interests (more strongly than continental law), the adversarial system and its procedural protections led Parsons to conclude (without any hint of disappointment, in contrast to Weber) that the English common law constituted the most advanced case of a universalistic normative order and was probably decisive for the modern world. He states unequivocally: ‘This general type of legal order is, in my opinion, the most important single hallmark of modern society. So much is it no accident that the Industrial Revolution occurred first in England’ (Parsons, 1964a: 353).

Other systems theorists, following Parsons, examine the interrelationships and exchanges between the various subsystems and contemplate the impact of the activities or change in one subsystem – for example economics or politics – on such other subsystems as law, and vice versa (Evan, 1990: 48–53). Bredemeier, for example, examines the outputs of the legal system in exchange for such inputs as goals from the political system (goal attainment), knowledge from the adaptive system and, from the pattern maintenance system (religion and education), conflict and esteem (Bredemeier, 1962: 89).

A recent revival in systems theory has been brought about in large part by Luhmann, who spent time at Harvard University with Parsons in 1960–1 but whose work remained relatively unknown among the English speaking world until the 1980s. Luhmann both studied law at university and practised as a lawyer. He also worked as a civil servant, a major career route for lawyers in Germany, and later held a professorship in sociology. His Rechtssoziologie (literally translated as the sociology of rights/law; the German word rechts means both law and rights) was published in 1972, but not translated into English until 1985 and published as A Sociological Theory of Law (Luhmann, 1985).

Luhmann commences with a theoretical view of society as a functionally differentiated social system, with the legal system as one of its functional subsystems (Luhmann, 1986: 112). Each subsystem is autonomous: ‘functional subsystems of society are always self-referential systems: They presuppose and reproduce themselves. They constitute their components by the arrangement of their components and this “autopoietic” closure is their unity’ (Luhmann, 1986: 112, emphasis in original). All such systems have to live with the inherent improbability of combining closure and openness; closure and openness are reciprocal not contradictory (Luhmann, 1985: 281–4; 1986: 122; 1988a; 1988b: 19–23; 1992: 1429–34). The unity of the system is produced by the system itself and the notion of operational or systemic closure does not mean empirical isolation or cognitive closure. Luhmann clarifies that the issue is not how a system can exist without external influences, but ‘what kind of operations enable a system to form a self-reproducing network which relies exclusively on self-generated information and is capable of distinguishing internal needs from what it sees as environmental problems’ (Luhmann, 1992: 1420).

Luhmann distinguishes social autopoiesis from its biological origins by identifying communication as the basic element of the former and by defining social systems as systems of meaning, not groups of people. These systems of meaning exist independent of individual action, but individuals are reconstructed or interpreted as epistemic subjects within different social meaning systems (King, 1993: 219, 228; Luhmann, 1988b: 16–19; 1992: 1422–5). Social systems as networks of meaning produce their own meaning: they construct the environment and perform their operations on the environment that they themselves have constructed. The central mechanism in this process is the use of binary codes to interpret and select information. Politics distinguishes between government and opposition, economics distinguishes payment from non-payment, morality separates good from bad, and science is built on the difference between truth and falsehood. In the case of the legal system, social events derive their meaning through the law’s unique binary code of lawful/unlawful, legal/illegal (Luhmann, 1988a: 154–7; 1992: 1427–9). The legal system distinguishes norms from facts and in so doing actually constructs the difference and, ipso facto, its own legal data. Even the ‘facts of a case’ that are relevant for legal attention are not facts in general, or facts for everybody. ‘Facts are constructions, statements about the world, and careful sociological investigations show that scientific facts and facts which serve as components of legal or political-administrative decision making differ in remarkable ways’ (Luhmann, 1992: 1429–30). Communications that code social acts according to the law’s binary code may be seen as part of the legal system regardless of their location.

Even though law is a normatively closed system, it is simultaneously a cognitively open one. It is open to cognitive information and input from its external environment as it responds to various substantive economic, political, scientific, social or other issues. However, it can only deal with these issues by transforming them into its own legal categories, which entails the selection of information according to legal (not political, moral, scientific or other) criteria (Luhmann, 1986: 117). Law’s response to external social, economic and political change indicates its permeability but, more importantly, the idea of autopoiesis shows how it transforms the dictates of change to its environment into its own legal forms and legal remedies. Thus, law does not respond to an environment that in some way has a direct impact on it, but to an environment that law itself constructs intellectually in its own terms and understands in terms of its own communicative criteria (Cotterrell, 1992: 67). Legal autonomy means that law reproduces itself but is not insulated from its environment. External demands and changes are neither ignored nor unproblematically incorporated into law. Changes are filtered selectively into legal structures according to their own legal logic of development. Wider social pressures influence legal development to the extent that they affect legal constructions of reality; they therefore modulate legal change, which follows its own logic (Teubner, 1983: 249).

There is an inevitable tautology in the idea that the legal system reproduces itself by legal events and only by legal events. That the law produces law and nothing else is hardly a surprising conclusion. Luhmann acknowledges that: ‘the reference to the normative framework of the law serves to establish circularity within the system: decisions are legally valid only on the basis of normative rules because normative rules are valid only when implemented by decisions’ (Luhmann, 1986: 115; also see Rottleuthner, 1988: 117–18). For example, legislative attempts to change law will be mediated by the law’s decisions on whether the legislation is valid, that is, whether the legislature acted within its constitutionally (legally) defined jurisdiction, or even whether the legislature has been properly (legally) constituted by a proper (legal) election.

Teubner, another proponent of autopoietic theory, refers to ‘evolutionary co-variation’ and ‘co-evolution’ to describe and explain the relationship between legal and social changes (Teubner, 1983: 246, 249). He formulates three dimensions of law:

Teubner follows Luhmann’s notion of reflexive law, but attempts to go further and to reformulate the role of the law in relation to the other specialized social subsystems (Teubner, 1986: 8). He describes the current situation as a ‘crisis’ of legal and social evolution. The emergence of the welfare and regulatory state placed greater stress on substantively rational law, that is, on law as an instrument for purposive, goal-oriented intervention (Teubner, 1983: 240). Responding to the crisis in legal formalism that has led to calls for such alternatives as delegalization and informalism, a conundrum appears to the systems theorist: ‘It is not possible to inaugurate functional equivalents outside of the system because being an equivalent includes them in the system’ (Luhmann, 1986: 120). Replacing legal functions or legal actors with alternatives is impossible, even though remedies may be available. The political system cannot replace the legal system and the legal system cannot replace the economic system, as functional subsystems are unable to solve the core problems of other systems (Luhmann, 1986: 120).

The partial failure of the welfare state, which relies on legal intervention to facilitate social change, has taken up the considerable attention of contemporary systems socio-legal scholars. For proponents of autopoiesis theory, it is not surprising that law seems relatively unsuccessful when it is employed to achieve various economic or social policy aims, because law cannot directly intervene, or even communicate with those systems. Teubner suggests that the limits of regulation are defined by the limits of self-reproduction: ‘A regulatory action is successful only to the degree that it maintains a self-producing internal interaction of the elements in the regulating systems, law and politics which is at the same time compatible with self-producing internal interactions in the regulated system’ (Teubner, 1984: 386, emphasis deleted). If regulation does not conform to the conditions of the structural coupling of law, politics and society, it inevitably ends in regulatory failure. Regulatory law is ineffective because it overreaches the limitations that are built into the regulatory process: the self-referential elements of the systems are jeopardized. Regulation can fail in three ways:

1. Incongruence of law, politics and society: here the regulatory action is incompatible with the self-producing interactions of the regulated system. The regulatory action becomes irrelevant and the law is ineffective, as it creates no change in behaviour.
   
2. Overlegalization of society: regulatory action influences the internal interaction of elements in the regulated field so strongly that their self-production is endangered. Thus law destroys other patterns or systems of social life.
   
3. Oversocialization of law: here the self-producing organization of the regulated area remains intact, while the self-producing organization of the law is endangered. The law is ‘captured’ by politics or economics, for example, resulting in the self-production of law’s normative elements becoming overstrained (Teubner, 1984: 386–7; 1987: 6–13).

Systems theory has generated considerable attention and criticism. Autopoietic theories indicate a return to abstract, grand theorizing and some commentators castigate the lack of empirical referents, especially as the central models are taken largely uncritically from biology. First, even if their assumptions are relevant to other animal species or to information theory, they may not be directly applicable to human society; and secondly, it is not taken for granted that such nonhuman, or nonliving, systems as biological organisms or computers operate self-referentially in the way that Luhmann supposes (Wolfe, 1992: 1731). Concepts are reified and autopoietic systems theory is tautological and becomes impossible to refute through empirical examples (Münch, 1992: 1464). It is a truism to assert that the legal system only produces law, and many social theorists earlier observed the ways in which law transforms the everyday world into legal relations. Teubner responds that such approaches are not scientific theories but strategic models of law, and that the theory of self-referential systems is a heuristic device (Teubner, 1984: 376–7, 384). Even so, following the dictates of this approach it is not possible to envisage an empirical situation that would not support the perspective. Finally, there is no culture or history in a view of law as an autopoietic system; law is not mediated by culture or everyday practices, but is only affected by structural differentiation and evolution.

Juridification

Habermas

Like Parsons, Habermas is interested in the integrative role of law in complex, secular societies. Following Weber, he focuses on rationality in law, but views rationality as more expansive than purposive rationality. Habermas decries the way in which normativity, and therefore, in his view, the legitimacy of law, disappears in models of law that stress its formal, rational, positivistic and systemic properties. He is particularly critical of Luhmann’s self-referential conception of law, which eschews values and meaning as nonlaw, even though their descriptions of modern society are very similar.

In this schema law operates as a medium, it is both connected to the economy and state and to the lifeworld, which is not characterized by purposive rationality but by practical reason, with an emphasis on morality, personal autonomy and communication. Money and power are connected to the lifeworld via legal institutionalization and the concerns of the lifeworld are conveyed to economic and political realms via legal discourse (Deflem, 1996: 8; Habermas, 1987: 256–82; 1996: 40). As Habermas suggests:

The legal code not only keeps one foot in the medium of ordinary language, through which everyday communication achieves social integration in the lifeworld; it also accepts messages that originate there and puts these into a form that is comprehensible to the special codes of the power-steered administration and the money-steered economy. To this extent the language of law … can function as a transformer in the society-wide communication circulating between system and lifeworld. (Habermas, 1996: 81)

Law is implicated in all three resources of integration, namely communicative action on the part of citizens who exercise their legal rights and freedoms in everyday life, as well as making possible the establishment and regulation of economic markets (via property, contract and corporation laws) and governmental bodies (via administrative law).

Because Weber viewed the rationalization of law in terms of purposive-rationality, questions regarding the institutional embodiment of moral practical rationality are inverted: they now appear to be a source of irrationality, or at least severely weaken the formal rationalism of law. Habermas considers that Weber confused an appeal to the need to justify legal domination with an appeal to particular values. Weber viewed societal rationalization explicitly from the perspective of purposive rationality, thereby denying value-rational aspects of action, which means that at the level of economic and political subsystems only the aspect of purposive-rational and not that of value-rational action is supposed to have structure-forming effects. His conceptions of modern law and legal domination are so narrow that the need for a principled, rational mode of justification is jettisoned in favour of emphasizing the positivity, legalism and formality of law. As such, the rationalization of law is no longer measured against the inner logic of the moral-practical sphere of value, as is that of ethics and life conduct; it is directly connected to the progress of knowledge in the cognitive-instrumental sphere of value (Habermas, 1984: 254, 262–8).

1. The bourgeois state, which in western Europe developed during the period of absolutism in the form of the European state system. This formed the political order that enabled the transformation of early modern feudal society into capitalist market society; introduced important principles of statutory law and the concept of the legal person; and established private law or the code of civil law to regulate transactions between legal persons, while public law authorizes a sovereign state power with a monopoly on coercive force and is the sole source of legal domination.
   
2. The bourgeois constitutional state, which assumed an exemplary form in the monarchy of nineteenth-century Germany, entailed the constitutional regulation of executive authority. As private individuals, citizens are given actionable rights in terms of life, liberty and property interests against the sovereign, though they do not yet democratically participate in forming the sovereign’s will.
   
3. The democratic constitutional state, which spread in Europe and in North America post-1789. Constitutionalized state power was democratized and (some) citizens, as citizens of the state, were provided with rights of political participation. Now there is a democratically assured presumption that laws express a general interest and procedures are established for parliaments to enact legislation that allows for public debate on law and legal change.
   
4. The social and democratic constitutional state, which was achieved through the labour and welfare movements during the twentieth century. Shorter working hours, the freedom to organize unions, social security and factory acts indicate juridification in the world of paid work, as such issues had previously been part of the prerogative of the owners of the means of production (Habermas, 1987: 356–62).

This view of juridification is state-centred, but Habermas also describes the juridification of everyday life, which he refers to as the colonization of the lifeworld (Habermas, 1987: 318–31). Juridification results from the legislative programmes of the welfare state, which offer protection to citizens against the inhumane effects of the capitalist market and provide such rights and freedoms vis-à-vis the state as universal (albeit limited) education or health schemes. The impact of the welfare state is paradoxical: its development enhances autonomy by cushioning the effects of an unregulated market, but the creation of legislation and bureaucracies to administer legal entitlements (usually in the form of monetary compensation) results in greater intervention in the lifeworld (Habermas, 1987: 361–73). Habermas observes that: ‘From the start, the ambivalence of guaranteeing freedom and taking it away has attached to policies of the welfare state’ (Habermas, 1987: 361, emphasis deleted). Social services established to provide expert or therapeutic assistance constitute further incursions into the lifeworld of citizens (see also Foucault, 1979). While this type of juridification aims to facilitate social integration, disintegration occurs within the lifeworld as situations and relationships come to be calculated in terms of money and power. The medium of the law can actually inhibit the aims and rationale of the lifeworld. For example, laws and administrative regulations stemming from educational policy on schools and teachers may actually undermine education by fettering the teacher’s discretion and pedagogical initiative. On one side, juridification grants protection and recognizes individual rights; on another it inhibits freedom and creativity. Specifically:

The more the welfare state goes beyond pacifying the class conflict lodged in the sphere of production and spreads a net of client relationships over private spheres of life, the stronger are the anticipated pathological side effects of a juridification that entails both a bureaucratization and a monetarization of core areas of the lifeworld. (Habermas, 1987: 364)

Juridification of the lifeworld means legally supplementing a communicative context of action through the superimposition of legal norms. ‘It is the medium of the law itself that violates the communicative structures of the sphere that has been juridified’ (Habermas, 1987: 370; also compare with Luhmann, 1986; and see Deflem, 1996: 10–12). All this suggests an increasing disillusionment with the emancipatory potential of law and a sense that it aligns more with purposively rational action and less with the practical reason of the lifeworld. Surprisingly, Habermas does not jettison his expectations regarding the positive role of the legal institutions, nor reassess his defence of Enlightenment reason.

Earlier concerns with rationality, the legitimation of law and juridification establish the foundation for Habermas’s most expansive treatment of law: Between Facts and Norms (1996). This was originally published in German as Faktizitat und Geltung, which translates literally as ‘facticity and validity’. Habermas’s overarching concern is to develop a theory of democracy that allows public participation and deliberation and that can be sustained in a highly pluralistic and differentiated society. He regards law, particularly the form existing in constitutional democracies, as central to ensuring deliberative democracy. His social theory of law is located between the fact of social differentiation and the norm of democracy, and he views law as mediating between normative demands of reason and the empirical facts of power and complexity (Bohman, 1994: 898–9). Habermas’s quest to articulate a normative account of law continues and he articulates a reconstructive approach encompassing both ‘the sociology of law and the philosophy of justice’ (Habermas, 1996: 7).

Habermas rejects legal philosophers’ lack of empirical grounding and inattention to legal institutions and criticizes social theorists’, especially systems theorists’, refusal to acknowledge values in the legal sphere. He argues that the rule of law and democracy are conceptually related, not just historically associated. The legitimacy of law derives from democratic procedures that create an open, tolerant, discursive and well-informed environment for political will formation. The core of democratic legitimacy is not metaphysical, but is the outcome of discursive conditions under which all citizens can shape, without coercion or distorted beliefs, the decisions that affect or interest them. Ideally, norms derive their legitimacy via the full agreement of citizens (Bohman, 1994: 903; Habermas, 1996: 449). Thus ‘the establishment of the legal code, which is undertaken with the help of the universal right to equal individual liberties, must be completed through communicative and participatory rights that guarantee equal opportunities for the public use of communicative liberties’ (Habermas, 1996: 458, emphasis in original). This is not an argument for direct participatory democracy, but one that seeks to embed radical democratic principles in an account of the political and legal institutions of modern constitutional democracies (Bohman, 1994: 897).

Legal validity simultaneously defines freedom and is based on coercion, so that the same law can regulate actors acting instrumentally as well as those acting communicatively. Habermas says: ‘for the person acting strategically, it [legal validity] lies at the level of social facts that externally restrict her range of options; for the person acting communicatively, it lies at the level of obligatory expectations that, she assumes, the legal community has rationally agreed on’ (Habermas, 1996: 31). Actors can consider legal norms as commands that constrain their actions and that they contemplate strategically in order to determine the calculable consequences of possible rule violations. Alternatively, they can take a performative view and approach legal norms as valid and comply because of respect for the law (Habermas, 1996: 448). Modern law regulates action and can be enforced by sanctions. At the same time it has legitimacy, which attracts respect and compliance without coercion. This dual nature is possible because modern law grants liberties and rights to all and is built on citizen participation in the democratic process of law making. Habermas’s model of deliberative democracy relies on citizen input in public forums, informal associations and social movements. Laws draw their legitimacy from a legislative procedure based on the principle of popular sovereignty. Modern law is especially suited for the social integration of diverse, plural and individualistic societies, as it provides rights that secure for citizens their political autonomy (Habermas, 1996: 83). Habermas thus evinces a modernist faith in the rule of law for the protection of all citizens. The rule of law and adherence to a discourse of legal rights are strongly criticized by critical legal theorists and feminists for reflecting a dominant worldview and not taking sufficient account of the fluidity of law and local or particular differences.

While not a systems theorist, Bourdieu investigates the way in which law and lawyers translate everyday issues into legal problems requiring legal remedies. His is a dynamic, fluid and flexible notion of law that militates against an objectified, reified conception of law and legal process. He takes the law to be a constitutive force in modern liberal societies and considers that the juridical field, like any social field, is oriented by a set of internal protocols and assumptions, characteristic behaviours and self-sustaining values (Terdiman, 1987: 806). The idea of field is less rigid than that of system, although, like Luhmann, Bourdieu is able to argue that the law transforms nonlegal conflicts into its own concepts and discourse and it is not dominated by other social systems (especially the state). However, he gives far more recognition to the role of legal actors.

Bourdieu observes that the dominant jurisprudential debate about law has been between formalist and instrumentalist approaches. Formalism views law as autonomous from social values, economic contingencies or political influence, and conceptualizes law as an organic, closed system constituted by sets of interrelated laws and doctrines. Instrumentalism considers law to be a reflection of economic or political interests or as a tool to be used in the service of dominant groups, particularly the bourgeois/capitalist class or men/patriarchy. Law is an instrument of domination based on an economic or a gender hierarchy. While law might appear to be universal, abstract and equally applicable to all members of society, in reality it reflects and reproduces social inequalities and specific worldviews.

Bourdieu argues that these two antagonistic approaches ignore the constitution of the juridical field, which in practice is relatively independent of external determinations and pressures. The social practices of the law are the product of the functioning of a field whose logic is determined by: