Law as a System

False Positive
in systems
 Objectives

1. On legal theories
2. The Systems Theory and Law
3. Read Clemens Mattheis’s article on the
systems theory and law
4. The Trial by Franz Kafka
5. Feasibility of the systems theory in the 21st C.
 Readings
Nicholas 　 Luhmann
“Law as a System”
Link: (please go to the link via My Waseda)
https://heinonline.org/HOL/Page?handle=hein.j
ournals/illlr83&div=12&g_sent=1&casa_token=
&collection=journals
Optional reading time: 30 minutes 　
 Mattheis, Page 629-634
Mattheis, Clemens. “The System Theory of
Niklas Luhmann and the Constitutionalization of
the World Society” Goettingen Journal of
International Law 4 (2012) 2, 625-647.
Link
http://www.gojil.eu/issues/42/42_article_matth
eis.pdf
Reading time: 30 minutes
 二クラス・ルーマン『社会の法』

Niklas Luhmann, Das Recht der Gesellschaft

ニクラス・ルーマン 著
馬場靖雄／上村隆広／江口厚仁訳
法政大学出版局、 2003 年 12 月 11 月 発行
1:ISBN4-588-00767-X C1336
2:ISBN4-588-00768-8 C1336
 What is a theory?

• Why study theories?

• What are legal theories?

• A theory as a perspective
• Description and analysis
 Theory as a Perspective

Legal Formalism Gender and Law

Systems Theory
Confucian Ethics

Critical Legal Theory (Legal Orientalism, Racial Profiling)

 Examples

Description v Argument/analyze
a…b…c.. Enumerating facts -- analyze the facts
Argue for or argue against

• 1945
• People or subjects 国民、臣民、人民
• Leaving a child unattended
Analysis
Try to identify hidden assumptions, hidden meaning
 A theory from generalization

Cases/facts -----------------
Hypothesis ---------------
Inquiries -------------------
Test ---------------------
Results -------------
Generalization ---
Case Analysis
Facts
Identify issues

Rule of law
Analysis

Conclusion
 How can we analyze law and culture?
Conformity – Adaptation
Functional theory, Systems theory
Emphasis on social expectations
Confucian ethics

Conflict – Resist
Change/ transformation/Critical theory
Power
Desire theory, False consciousness
　　 Theory of the Other
Feminism
 Dialectic Method 弁証法

Thesis Anti-thesis Synthesis

正 反 合
　 Ex: Legal reasoning against Post-modern
Critical Legal Theories
 What is Systems Theory?
• Talcott Parson - adaptation
• Ascriptive status
• Ascribed status
• Universal attributes
• Particulars
• Functions and roles in a society
• Family as a system
https://triumphias.com/blog/talcott-parsons-social-system/(last
accessed on November 17, 2020)
Emphasis on functions
Societal expectations

https://triumphias.com/blog/talcott-parsons-soc
ial-system/
 Michael Foucault
• Foucault’s personal background
• The History of Sexuality
• Against adaptation
• If deviated?
• Discipline and Punishment
• Power and violence

Ex: Wrongful conviction

 Discipline "makes" individuals; it is the
specific technique of a power that regards
individuals both as objects and as
instruments of its exercise.
(Foucault, 1975)
 Panopticon

https://artsone-open.arts.ubc.ca/foucault-discipline-and-punish/
 Focus on Conflict

Societies and individuals from the conflict

perspective

Institutions – Schools, hospitals, prisons

Violation
Sanctions
Discipline
 Systems Theory and Law

Niklas Luhmann
• Systems Theory and Law
• Self-organization
• “hypercyclically closed system”
• Paradoxes of self-reference
• “Circularity as a problem” of social reality
• Self-observation
• Self-production
 Franz Kafka

The Trial (Book/Movie)

The main character K was having breakfast as usual.

While having breakfast, someone knocks on his door. He
thought it was his house maid because she usually serves
breakfast. However, in front of the door, there were two
policemen. The police has asked K to come to the police
office for an investigation. K does not know what is
happening. At the end, K is sentences to death.
The Trial ( 審判）
1. How does on identify a subsystem code?
2. The problem of translation
3. Systems Theory
4. Common referents in legal pluralism?
5. Interlegality
 Mattheis, Page 629-634
Clemens Mattheis, “The System Theory of Niklas
Luhmann and the Constitutionalization of the
World Society” Goettingen Journal of
International Law 4 (2012) 2, 625-647.
http://www.gojil.eu/issues/42/42_article_matth
eis.pdf
 Mattheis, Page 629
“For Luhmann, the society and all (sub)systems
are autopoietic systems of self-producing
communications.”
https://www.researchgate.net/figure/The-System-Environment-Tautology_fig1_25481132
4
(last accessed on November 17, 2020).
 A network model of related concepts

…. a theory is not an empirically verifiable

hypothesis, but as a self-description a part of the
society itself…
 Core elements

1. The core element is communication

2. The unity of “utterance, information and understanding”
3. Each social system consists of countless meaningful
communications
4. Basic unit of observation
5. A society produces “continuous juxtapositions of
communication operations”
6. Social systems are not stagnant structures
7. The systems consist of a multiplicity of “events”
 Self-creation

1. Autopoiesis as “self-creation” or “self-making”

2. Autopoiesis is a concept in biology which means “circular
self-production”
3. Autopoiesis is based on an operatively closure
4. Each autopoietic can be differentiated from other systems.
5. A system refers to the ONE and ONLY system specific
communicative channels. Communication is within the
boundary of the system.
6. A system contains its own codes.
 Autopoiesis

Self-creation
Self-making

Luhmann refers to autopoiesis in biology as a

“circular self-production”
Culture as a System
Clifford Geertz, Religion as a Cultural System
https://nideffer.net/classes/GCT_RPI_S14/readin
gs/Geertz_Religon_as_a_Cultural_System_.pdf
 Mattheis, page 629
“Autopoiesis is based both on the so-called
differentiated approach and on an operatively
closure – each autopoietic system is operatively
closed and can be differentiated from all other
systems.”
 Legal Communications
“It reproduces itself in accordance with its own
code and its own programs through system-
specific communications.” (Mattheis, Page, 629).
 An example

Legal discourse

Judge: Did you see that the vehicle moving?

Defendant: ……
 Mattheis, Page 629
“Autopoietic systems are therefore more than just
autonomous, self-contained regimes. It is important to
keep in mind that, although autopoietic systems rely
on constant and concrete structures, they are not
resistant to evolution and change.”

“Evolution, learning and change are possible and

necessary – but only within the boundaries of the
system. The various systems are connected via
structural couplings.”
 Mattheis, Page 629
Differentiation

Luhmann’s system theory relies on a clear and

strict differentiation of autopoietic systems (as
social structures) and their environment.
 Mattheis, Page 629
“Each autopoietic system considers the other
systems as its non-systemic environment. “

“this distinction between a system and the

environment is only possible if the system is
closed in itself and draws limits with its own.”
System A System B
 Unity of a system

1. A unity of self-referential autopoietic systems

2. Possible
(1) if the systems are determined by themselves
(2) if they determine themselves
3. Clear cut
4. Meaning from the environment is isolated
 Operative Closure

…. The distinction between system and

environment is only possible if the system is
closed in itself and if it is able to draw limits with
its own system-specific operations – and if these
limits in turn can be monitored from the outside
as the difference to the environment …
(Mattheis, 629).
Compatible only within the system

1. A system is characterized by its own specificity of the

closed operations
2. a system cannot communicate with its environment.
3. The system-specific ‘communication-logic’ is only
‘compatible’ within the system and does not work
outside from the system, meaning in the given
context
4. Examples from cultural vocabulary
 Functional Differentiation

“ …. a communication or activity as functional, if

it serves the perpetuation of the complex
structured unity of a system…” (Mattheis, 629).
 Differentiated subsystems

• Communication as the core element of legal

system
• Law as a system of communication
• Specific communication in the society
• An autopoietic legal system is like a structure
of a social system based on generalization of
normative expectations.
 Sub-couplings
留守番させ
る
Leave a
minor alone

The
土下座
Dogeza
Japanese そろばん
Soroban
Language

甘える
Amaeru
Sub-couplings: An example
Offer

Rejection Contracts Acceptance

Breach
 Double effects of couplings

1. Reciprocity with another system can be

lacking
2. The couplings can reinforce the closure
3. An example from the Japanese property law
Land and Building Lease Act
Legal Ground Rights
Who has the rights of superficies?
( 法的地上権）
 Code

• The legal system has a specified code and

programs
• The legal system operates with the code
legal/illegal and right/wrong.
• Only the legal system operates with this code,
meaning that no other system is able to state
what is right and what is wrong.
 Code
• For the practical implementation of the law
• Case law, statutes, treaties fall under a corresponding
programming
• Without this law-specified programming, the law-specified
code would become a meaningless form without any
significance (Mattheis, 631).
• The code enables the operational closure and the unity of the
legal system
• Legal system is important because it is built on the operative
closure and autopoiesis
• The cognitive openness
 An Example

Legal codes related to real estate transactions

1. The Civil Code - Real estate property rights

2. The Civil Code - Contracts, Torts (Wrongdoings)
3. The Commercial Code
4. The Land Lease and House Lease
5. The Law of Real Estate Registration
6. The Real Estate Transactions Business Law
7. The Building Standard Law
8. The City Planning Law
 Required elements
The fixed-ground rights (rights of superficies)
1. Set up a mortgage requires there is a building on
the land.
2. The owner of the land and the building are
identical.
3. A mortgage has been set on land, buildings, or
both.
4. The execution of the mortgage separates the
owner of the land and the building.
 Building on
the land

The owner of
the land and Mortgage set on
the building land and buildings
must be an or the land or a
identical building
person.

The execution of
the mortgage
separates the
owner of the land
and the building
 Another example

Larceny
1. Taking
2. Carrying away
3. Personal property of another
4. With an intent to deprive
 Larceny

Taking

Personal
Carrying
property of
another away

With an
intent to
deprive
 Procedural Process

• Substantive law
• Procedural due process

• The legal system should be reliable and

constant
• The legal system should not exclude potential
variability
 Randomness institutionalized
• Legal rules of a society and competent
decisions?
• Openness and conflicts “within”
• The danger of randomness
• False positives
 Cognitive openness
• Cognitive openness possible?
• The interplay between the law and the
societal context (environment) .
• The unity of the legal system is important.
• The operative closure and the legal system
should commensurate with each other.
 International Law
1. International law as a code distinguishing legal
or illegal
2. The global legal system
3. The importance of international tribunals
4. Only tribunals underlie a ruling-obligation which
is rooted itself in the system and is not
influenced by factors outside the system. Ideally
spoken, tribunals have to decide on the basis of
law, without moral or political aspects
 Constitution
• The constitution as the law system
• The end of positivism of law
• A national constitution vs. Global
• Can a national constitution be compatible with
another national constitution?
 Transnational networks
• A metamorphosis and has led to a functional
synthesis between the systems.
• A system based on a theoretical
constitutionalization of the world society
possible?
• Examples: “the people”, “the subjects”, “the
citizens”
 Social System Law

“makes behavioral expectations mandatory”.

“legal rules are counterfactually stabilized

expectations, which are secured against
disappointment.”
 External Observation

“The fulfillment or non-fulfillment of legal rules

is irrelevant to their validity.”
 Walter Benjamin

The concept of good (and perhaps by extension,

evil) is already present in the garden. The tree’s
presence attests to a different calculation, one
based not on good and evil (which Benjamin
calls “nameless” concepts) but on law.

The actual expulsion from paradise – Law

 Creation of law as mythic

• The Tree of Knowledge as the tree of

judgement
• Command and obey
• “This is the form of law that attempts to
assuage its guilt by recourse to truths from
which it is henceforth permanently banished
hence a “mythic” origin” (Benjamin, 2014).
Law as the Second Commandment

• Human disobedience
• The tree of judgement takes on a new valence
as the source of judgment
• The Fall as the result of the withheld
judgement

Ex: Japanese folk story about the crain

 Legal rules of a society

“A legal rule is respected only because it is set

according to certain rules by competent decision.”

“Randomness is thus becoming institutionalized.”

… an institution leads to an “openness and conflict

of decision situations” which is only temporarily
uncertain.
 Operative closure

…. “the unity of the legal system is guaranteed,

meaning that the law is no longer directly
influenced by criteria outside the legal
structure”…
 False Positives
Examples: The big data, Anti-money laundering

• A six year old being classified as a terrorist

• A catholic nun accused of money laundering
• Wrongful convictions
• Would critical legal theories help solve
problems?
• Randomness should not become institutionalized