Legal System Theory

from University of Tokyo 1S Law and Society Legal System Theory

• Here comes Luhmann’s attempt to reconstruct legal theory based on system theory.
  • It is grounded in the field of sociology of law.
    • Utilizing methodological dualism, it deals with the world of existence rather than the world of ought.
      • Similar to Weber.
    • How do we perceive society (the world of existence)?
      • Viewing society as an aggregation of various systems.

        • Various systems like the academic system, economic system, legal system, etc.

        • Interaction among these systems, where politics influences legal codes.

        • In essence, viewing law as one of the systems.

        • But there is a flaw in this worldview of the legal system (blind spot).

        • The program that judges legal/illegality cannot question its own legality/illegality.

        • For instance, it cannot determine if the Japanese Constitution is legal or illegal, revealing a blind spot.

        • Forced reasoning could lead to paradoxes like legality being considered illegality.

        • There are two ways to address this paradox:

          • Splitting observation into two parts:
            • (Here, “observation” refers to “action of distinguishing and indicating”) (linked together)
          • First-order observation: what
            • This involves regular “observation” (judging if one’s actions are legal or illegal).
          • Second-order observation: how
            • Relatively examining how first-order observation is conducted.
            • Meta-observation?
          • Referred to as “unfolding of paradox.”
          • Fundamentally, law is autopoietic (law generates itself).
            • Unsure about specific examples here?
          • However, the basis for judging legality/illegality is externalized to other systems (e.g., political system).
            • This is referred to as allopoiesis.
          • This approach leads to a response of “I don’t know” to the paradox.
          • The development of this thinking is structural coupling.
            • The legal system partially depends on other systems (as mentioned earlier).
            • Conversely, the political system also partially depends on the legal system.
            • This interdependent relationship between systems is termed structural coupling.

        • Considering these, the closure and openness of systems are contemplated.

          • Closure
            • First-order and second-order observations
          • Openness
            • Unfolding of paradox
            • This leads to externalization of some aspects.
            • Re-entry
              • Reflecting on the system based on how it is perceived by external systems.
      • Luhmann’s worldview is nested.
        • What kind of worldview?
          • Firstly, there is the theory of System (Luhmann) as a form of scholarly observation.
            • (Matching the Definition of theory).
          • Within this worldview, there are various systems like the academic system, legal system, etc.
          • Sorting out where various legal relations, studies, and theories fit within these systems,
            • Legal system:
              • The chain of communications dealing with norms (ought discourse, legal/illegal).
                • Definition: Restricting possibilities when other actions are visible.
              • Specifically, it involves:- Jurisprudence
  • Discusses how something should be interpreted
  • Organizes the interpretation and application of law
  • Printed on page 5 of Chapter 1
• Methodology
  • Discusses the methods to be used for interpretation
    • Such as textual interpretation
  • Rn23.
• Reflective Theory
  • Also known as “legal theory”
  • Discusses how the legal system should interact with other systems while maintaining consistency
    • If discussing how one should be, it does feel like reflection
• These discussions are more abstract than specific cases (from a Second-Order perspective)

  • The consequences of the differentiation of legal expertise at the second-order observation level

• However, all of these are discussions on norms, so they can be positioned as actions within the legal system
• Academic System:
  • Chain of communication dealing with truth and falsehood
    • Not about norms, but about truth and falsehood (?)
  • Specifically doing:
    • Philosophy of Law
      • Seems to be focusing from the academic system to the legal system
        • This might also be from a Second-Order perspective
      • Academic pursuit for achieving justice
      • Printed on page 4
      • There are several variations
        • Details are written in “Understanding Philosophy of Law”
        • First variation
          • Also known as “national philosophy,” a German concept
        • Second variation
          • Also known as “deliberative theory”
            • Public opinion in civil society is reflected in parliament/laws, and from there
      • Both of these, if seen from a systems theory perspective, focus too much on the legal system and political system only, criticized by Vesting
        • What about considering the relationship between law and economics?
      • Discussing what justice is
        • Is this not a discussion of norms..? (blu3mo)❓
    • Sociological Jurisprudence
      • Discusses how the legal system interacts with other systems while maintaining consistency
      • The difference from Reflective Theory is the discussion of norms (should) versus the discussion of existence (is)
      • This is what Luhmann was dealing with
• In summary, “Sociological Jurisprudence” presents a worldview that organizes various aspects related to law and also defines the position of “Sociological Jurisprudence” within it (blu3mo)
  • It’s like this nested structure, and
    • Self-reference, yeah~ (blu3mo)
  • At least, I’m starting to grasp what Luhmann wants to talk about next (blu3mo)
• Vesting’s criticism of this
  • Criticizes the worldview based on systems theory
    • Everyday “language” cuts across this system
      • Well, of course, distinguishing between “existence” (academic system) and “should” (legal system) in everyday life is challenging (blu3mo)
        • I also thought about this in the discussion on “How Wikipedia gets to define what’s true online”
    • So, shouldn’t theory also transcend the legal system and academic system?
      • I think what they are saying makes sense, but I don’t understand the “so” part (blu3mo)❓
      • Isn’t legal interpretation and methodology not exclusive to the legal system but also cross over between the academic system and legal system?
        • There are instances where theories in physics (purely academic) interact with jurisprudence, right, criticizing that
      • Then, isn’t “legal theory” something that exists in the intersection between the academic system and legal system?
        • Wait, didn’t they just criticize the worldview of systems theory? (blu3mo)
        • Maybe they are suggesting that the way legal theory was originally perceived didn’t capture partial overlaps well, so a more comprehensive approach is needed, right? (blu3mo)
    • As a thought, is mathematics then on the side of the legal system? (blu3mo)❓- This is not a discussion about existence, but rather about the concept of “being” based on certain assumptions.
  • In terms of the historical development of philosophy:
    • Ancient times: Plato and Aristotle
      • Did they consider existence as something that exists?
        • It feels like trying to unearth ideal theories that exist somewhere in this world.

      • Existence = Presence, Production

        • Not entirely clear, but let’s link it for reference (blu3mo)
    • Modern era: Nietzsche, Heidegger, and Luhmann onwards
      • Did they view existence as something that creates new things?
        • Including theories.

      • Existence = Generation, Nature

        • Existentialism

      • By setting the perspective of each “existence,” things gathered within that perspective are seen as “existence.”

        • Does this mean that each system as an existence has a perspective (binary code) and creates a new “existence” by gathering various existences? (blu3mo)❓
          • I grasp the abstract idea, but the specifics are still unclear. (blu3mo)
  • I want to understand this through programming. (blu3mo)