Oñati Socio-Legal Series

Introduction: A Special Issue on Niklas Luhmann’s systems theory and law

Stine Piilgaard Porner Nielsen — 2024-10-01

Combating corruption, ordering business practices and regulating the use of artificial intelligence are but some of the challenges of today’s society that socio-legal research engages with. These challenges are often transnational in their character, calling for an analytical toolbox fit to examine phenomena that transcend space and time. Niklas Luhmann’s systems theory offers such a toolbox to examine complicated communicative practices in today’s globalised world. This Special Issue brings together junior and senior socio-legal researchers from the Global South and the Global North who illustrate and exemplify how Luhmann’s systems theoretical framework can be applied and theoretically discussed with the purpose of analysing socio-legal issues of relevance for the world of today. This article first introduces the motivation and aim of the Special Issue. Then, the article introduces key concepts of Niklas Luhmann’s systems theory and sociology of law, followed by a presentation of the articles that constitute the Special Issue.

The evolution of transnational sustainability governance through a systems theory lens

Karin Buhmann — 2024-10-01

This article applies Luhmann’s systems theory approach to the argumentative dynamics of the processes and outcomes of key UN and EU initiatives during the decade 2002-2011 in regard to the development and acceptance of human rights responsibilities for business enterprises. That decade saw a change from rejection to welcoming of ideas on such responsibilities as a key social sustainability issue. Demonstrating the use of systems theory to empirical cases, the article shows how the systems theory perspective generates important insights on communicative aspects of a regulatory process towards a normative change in contexts with multiple and diverse interests at play in today’s legal order where the transnational character of many sustainability problems exceeds the nation state. The article fills a knowledge gap concerning processes for governing transnational sustainability issues, where the territorial limits of national public law and the weak private-actor coverage of international law pose challenges to conventional regulation.

Swedish trade unions and in-work poverty

Ann-Christine Hartzén — 2024-10-01

This article aims to exemplify how Swedish social partners, especially trade unions, have addressed the issue of in-work poverty in relation to recent and influential changes of the Swedish Employment Protection Act. Applying a methodology where Luhmann’s systems theory is used as a framework of analysis, whereby social partners and trade unions are viewed as organisations that contribute to the production of communication within the autopoietic system of industrial relations. The empirical material analysed for the article, therefore, consists of written communications from Swedish social partners and trade unions, produced during the process of changing and adapting the new the legislation. The analysis shows that Swedish trade unions could be more ambitious and direct in addressing the issue of in-work poverty and that further research on this topic would be useful to assist the trade unions in formulating relevant strategies for the future.

Corruption in unlikely places

Karin Pedersen — 2024-10-01

Corruption, defined as the “misuse of public position for private gain”, represents an act of deviance from official duties in the interest of self-enrichment. Denmark is ranked as one of the least corrupt countries in the world. Danish court records, however, show that corruption cases have appeared in the 21st century. Using Luhmann’s systems theory and Foucault’s method of genealogy, this article asks how this has happened. I argue that understanding corruption in Denmark may go back to changes in public administration ideas and practices since the 1990. New Public Management reform has increased the complexity in public administration where meaning horizons of communication related to different functional systems – especially the sub-systems of law and economy – clashes. I theorise and illustrate using court cases how the coexistence of different codes creates an environment for public employees that in some circumstances – however still rare – result in corruption.

Decentralised finance, regulation, and systems theory

John Paterson — 2024-10-01

Cryptocurrency has sparked expressions of concern from regulators – though sometimes coupled with expressions of interest in state-backed alternatives. This paradoxical situation neatly encapsulates the conundrum confronting regulators as they seek to come to terms with the new world opened up by blockchain and leading ultimately perhaps to decentralised finance. How do we best understand this confusing situation? This paper looks for answers by attempting to conceptualise the phenomenon of decentralised finance in autopoietic systems terms. Insofar as a plausible argument can be made for the proposition that finance represents an example of the internal differentiation of the economy, does decentralised finance in some sense constitute an intensified internal differentiation? Alternatively, and paradoxically, insofar as what we are concerned with is decentralised finance, does it instead in some sense represent an example of dedifferentiation? Answers to these questions will have relevance for efforts to regulate this emerging phenomenon. They will also help to shed light on whether state and central bank experiments in this space will produce positive effects or bring their own challenges.

Risk and danger in the introduction of algorithms to courts

Luisa Hedler — 2024-10-01

In a context where public debate regarding technological advances has the potential to deeply impact the functioning of courts of law, both academics and practitioners regularly employ the concept of risk, which has a prominent role in both academic discourse and regulation attempts regarding this matter. Through a qualitative content analysis of the European Ethical Charter on the use of Artificial Intelligence in judicial systems and their environments, as well as the Brazilian Resolution n. 223/2020 of the National Council of Justice, which address the same issue, I compare the EU normative responses to the possibility of introducing algorithms to Courts to their heavily inspired Brazilian counterparts, especially highlighting the commonalities on how risk is communicated about through the documents.

Algonormative expectations

Germano Schwartz — 2024-10-01

Contemporary society has developed, for itself, a way of reducing its own complexity: algorithms. Their basic function is precisely that of reducing the complexity of expectations – cognitive and normative – and those of the expectations of expectations (juridical decisions). When observed under this lens, algorithms, by way of their artificial communication, equally influence normative expectations (Luhmann) and juridical norms (Hydén). In this article we will attempt to respond to the following question: is it possible to defend the existence of algonormative expectations? In order to respond, methodologically, one seeks to define in what way the employment of the theories of these authors contribute to the development of the concept of algonormative expectations. It is in this direction that one initially approaches Hydén’s bases for algo norms and, at a second stage, one seeks to conjugate them with Luhmannian cognitive expectations. The final question is to verify, alongside the artificial intelligence defended by Esposito, what the conditions are for the observation of algonormative expectations.

The legacy of Luhmann’s sociology of law

Lucas Fucci Amato — 2024-10-01

This paper aims to map the possibilities of adopting social systems theory in order to couple three usually isolated domains: social theory, jurisprudence and empirical research. It argues that these different uses would be the distinctive legacy of Luhmann’s work for legal research. The text suggests that investigations interested in adopting a systemic approach for discussions in each of these three domains (or in all of them) should focus on the entanglement among interactional, decisional and functional systems. However, this presupposes some enhancements in Luhmann’s own description of law as a social system. The core hypothesis presented here is that a functional system’s out-differentiation (its specialisation in face of other communications happening in the societal environment) depends on the inner-differentiation of this system – that is, on operations backed by the very construction of specific functional-systemic institutions and semantics (including decisional programs and self-descriptions).

Global crisis governance in response to scientific information

Karin Buhmann — 2024-10-01

This article explores determinants of effective communication for crisis responses across functional sub-systems at diverse public organisation levels. That is done by analysing WHO and IPCC statements on COVID-19 and climate change, and governmental responses, drawing on Denmark as a pilot case. A functional sub-system is constituted by binary codes, embodying the sub-system’s key logic. Sub-systems respond to information triggering their logics. The analysis shows that with an emphasis on effective governance and the delivery of health care, the WHO was effective in generating governmental action on COVID-19. By contrast, the IPCC’s extensive deployment of the true/false logic of science is less effective for activating governmental response. Addressing public governance and relevance of Luhmann’s systems theory, our findings suggest that decision-makers can be prompted into action through deployment of arguments that connect to governments’ logic. This finding holds potential for improving communication between scientific and governance agencies for crisis responses.

Between the State and the community

Marina Medan — 2024-10-01

The article addresses the governance of "at-risk" youth and the relationship between the State and the community through the study of street-level bureaucracies. Using as a paradigmatic case the figure of a state agent who implements a youth inclusion program in the same popular neighborhood of Buenos Aires (Argentina) where he resides, it addresses the hybrid nature of the State (Haney, 2010). Through a relational work that links everyday practices and moralities, the hybrid agent embodies a versatile model of governance through which he produces distinctions, hierarchies, and legitimacy towards his superiors, colleagues, and recipients. Territorial belonging, professionalism, and social, age-related, and gender-related closeness between agents and recipients combine and enable mobile positions that have effects on the inequalities of interaction. Furthermore, they configure particular understandings of the categories "life project," "autonomy," and "transition" central to programs aimed at poor youth. Qualitative data produced in a socio-anthropological research conducted in Buenos Aires, between 2016 and 2018, are analyzed.

Intimate partner violence in lesbian couples

Mónica Laliga Mollá — 2024-10-01

Violence in lesbian couples is an invisible phenomenon in our society, which makes it difficult to address and intervene, especially in the processes of de-victimization. The aim of this paper is to know the help-seeking processes of lesbian women victims of this violence in Catalonia. After the implementation of a questionnaire, the results reported that many of the participants tell about the situations of violence, but not all of them decide to ask for help. Friends and psychological care stood out as the main sources of support among the participants who initiated the help-seeking process. Most of the participants sought help when situations of violence were present and the couple's relationship continued. This study, in addition to making these processes visible, points out recommendations for future research in order to continue advancing and improving the care, accompaniment and support of lesbian women victims of intimate partner violence.

Between plunder and shock

Adriana Castro — 2024-10-01

This document highlights that the Peruvian State took advantage of the pandemic as an opportunity to infringe upon the rights of indigenous peoples by accelerating the prior consultation processes in the mining sector, thus violating rights recognized in its own legislation and the jurisprudence of the Inter-American Court. The analysis of consultation processes (2020-2022) evidenced (I) lack of accessibility, as the State used legal Spanish in all process documents, despite the fact that in 77.7% of the communities, over 80% of the population had an indigenous language as their mother tongue; (II) lack of good faith, as 88% of the cases had stages shortened and the intercultural dialogue stage excluded; and (III) the failure to aim at reaching an agreement, using less time and recording only a matrix of agreements from one community.

Complicit masculinity of judges

Eylem Ümit Atılgan — 2024-10-01

The paper focuses on how unjust provocation reduction, regulated in Article 29 of the Turkish Penal Code, is applied in cases of violence against women, LGBTI, and transgender individuals in Turkey, also known as "masculinity sentence reduction" by feminist lawyers. In particular, I will look into case files in which the "masculinity defence" made by almost all perpetrators in femicide cases is accepted by the court as a justification for reducing the sentence of the perpetrator. I will examine how masculinity is portrayed in judicial decisions, specifically looking at provocation defences to demonstrate how jurisdiction plays a part in perpetuating masculine domination within society. Using theories of masculinity and masculine domination, I will try to reveal the contribution of judges to the "masculine legal culture" as a form of "complicit masculinity".