Legal System Theory

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

• Introduction to Luhmann’s Legal System Theory
  • This theory attempts to reconstruct legal theory based on systems theory.
  • It is grounded in the field of sociology of law.
    • Using the framework of methodological dualism, it deals with the world of existence rather than the world of oughtness, similar to Weber’s approach.
  • How do we perceive society (the world of existence)?
    • Society is seen as a collection of various systems such as the academic system, economic system, and legal system.
    • These systems interact with each other, for example, politics influencing legal codes.
    • In other words, law is seen as one of the systems.
    • But there are problems with this perspective on the legal system (blind spots).
      • The program that determines legality or illegality cannot determine if it itself is legal or illegal.
      • Specifically, it cannot determine if the Japanese Constitution is legal or illegal, which creates a blind spot.
      • If we force the issue, we end up with a paradox where being legal is illegal.
      • There are two ways to handle this paradox:
        • First-order and second-order observation.
          • Observation is divided into two parts.
            • First-order observation: what
              • This refers to the normal observation of whether one’s own actions are legal or illegal.
            • Second-order observation: how
              • This looks at how the first-order observation was conducted relative to other observations.
              • Is it appropriate to paraphrase “meta observation”?

              • It means being able to observe the fact that “one cannot observe something one cannot see.”

            • Also known as “unfolding of paradoxes.”
            • As a premise, law is fundamentally autopoietic (it generates itself).
              • I can’t think of a specific example here. Is it all laws enacted by the parliament, so they are all allopoietic?
            • However, the basis for determining legality or illegality is externalized to other systems (e.g., the political system).
              • This is what makes it allopoietic.
              • Specifically, the constitution is law.
            • In this way, the paradox is resolved by saying “I don’t know.”
            • This thinking is further developed in the concept of “structural coupling.”
              • The legal system depends on other systems such as the political system (as mentioned earlier).
              • Conversely, the political system also depends on the legal system.
              • This interdependence between systems is called “structural coupling.”
        • Based on these ideas, we consider the closure and openness of systems.
          • Closure
            • First-order and second-order observation.
          • Openness
            • Unfolding of paradoxes.
              • This leads to externalization.
            • Re-entry
              • Externalizing and reflecting on how the system is perceived by external systems.
      • Luhmann’s worldview is a nested structure.
        • What kind of worldview?
          • First, there is the theory of System (Luhmann) as a form of academic observation.
            • (In line with the definition of theory)
          • Within that worldview, there are various systems such as the academic system and the legal system.
          • By organizing where various legal-related studies and theories fit within these systems:
            • Legal System:
              • Communication chains dealing with norms (oughtness, legality/illegality).
                • Definition: Restricting other possibilities when alternative actions are observed.- It seems to be about limiting the potential to kill people when there is a possibility of doing so (blu3mo).
• Specifically, it involves:
  • Legal Hermeneutics:
    • Discussing how to interpret and should interpret laws.
    • Organizing the interpretation and application of laws.
    • Print 1, Chapter 5, page 5.
  • Methodology:
    • Discussing the methods of interpretation, such as Textual Interpretation.
    • Rn23.
  • Reflection Theory:
    • Also known as “legal theory”.
    • Discussing how the legal system should interact with other systems while maintaining consistency.
    • If it is a discussion about how one should be, it does have a sense of “reflection”.
  • These are more abstract discussions rather than specific cases (from the perspective of Second Order).

    • The result of the differentiation of legal expertise at the observation level of second order.

  • However, they are all discussions about “norms” and can be positioned as actions within the legal system.
• Academic System:
  • A chain of communication dealing with truth and falsehood.
  • It is not about norms, but about truth and falsehood.
  • Specifically, it involves:
    • Legal Philosophy:
      • Looking at the legal system from the perspective of the academic system.
      • A discipline that seeks to achieve justice.
      • Print, page 4.
      • There are several variations.
        • Details are written in “Understanding Legal Philosophy”.
        • The first variation is called “National Philosophy”, the German one.
        • The second variation is called “Deliberative Theory”.
          • The public opinion of civil society is reflected in the 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, and Vesting criticizes them for not considering the relationship between law and economics.
      • Discussing what justice is.
        • This is not about “norms”..? (blu3mo)(blu3mo)❓
    • Sociological Jurisprudence:
      • Discussing how the legal system interacts with other systems while maintaining consistency.
      • The difference from Reflection Theory is whether it is a discussion of “norms” or a discussion of “existing” (ought to be).
      • This is what Luhmann dealt with.
• In summary, “sociological jurisprudence” presents a worldview that organizes various things related to law and also determines the position of “sociological jurisprudence” within it (blu3mo).
  • It is an Nested Structure like this (blu3mo).
  • At least now I understand what Luhmann wants to talk about (blu3mo).
• Vaihinger’s criticism of this:
  • Criticizing the worldview based on the system theory itself.
  • Everyday “language” cuts across this system.
    • Well, of course, it’s difficult to distinguish between “existence” (academic system) and “ought to be” (legal system) in everyday life (blu3mo).
    • I thought the same in the discussion of “How Wikipedia gets to define what’s true online”.
  • So, doesn’t theory also cut across the legal system and the academic system?
    • I think what he is saying is true, but I don’t understand the meaning of “so” (blu3mo)❓
    • Isn’t legal hermeneutics, for example, not something that exists only in the legal system, but something that cuts across the academic system and the legal system?
      • There are definitely interactions between the theories of physics (purely academic) and Legal Hermeneutics, right? That’s the criticism.
    • In that case, “legal theory” is something that exists in the space that cuts across the academic system and the legal system.
      • Wait, didn’t you just criticize the worldview of system theory? (blu3mo)
      • If you take the original interpretation of “legal theory”, it doesn’t capture the partial overlap well, so it’s better to consider it as something that cuts across (blu3mo).- As a thought, is mathematics then part of the legal system? (blu3mo) ❓
  • It’s not about existence, but rather a discussion based on assumptions.
• In the historical flow of philosophy:
  • Ancient times: Plato and Aristotle
    • Do they consider existence as something that can be thought of as existing?
      • It’s like digging out an ideal theory that exists somewhere in this world.

    • Existence = Phenomenality, Creativity

      • I don’t really understand it, but I’ll link it anyway. (blu3mo)
  • Modern times: Nietzsche, Heidegger, and Luhmann
    • Do they consider existence as something that creates something new?
      • Including theories.

    • Existence = Generation, Nature

      • Existential action

    • By setting each “existence” perspective, what can be gathered within that field of view is seen as “existence.”

      • Is it a story that each system, as an existence, has a field of view (binary code) and creates a new “existence” by gathering various existences? (blu3mo) ❓
      • I understand it abstractly, but I don’t understand anything specifically. (blu3mo)
• I want to understand it through programming. (blu3mo)