Niklas Luhmann (1927-1998) 2015
Rudolf Stichweh uni-bonn.academia.edu
Niklas Luhmann (1927-1998) 2015
SUMMARY We perceive our modern Western society as increasingly complex and contingent: a sheer abundance of possibilities goes hand in hand with a lack of an overall direction or guidance. Not only is it almost impossible to map everything we can do (at least theoretically) within a lifespan, it is also equally difficult to make selections, to choose what to do and what is best left aside. Guidelines are no longer offered exclusively by a dominant religion or popular political strand of thought: there is a multitude of competing language games. To some extent, the legal system and a basic set of normative principles, as a residue of modernization, delimit our possibilities and contribute to social order (both in form and content). In an era wherein our own identity becomes a matter of construction and selection, the macro level of a description of societal unity constitutes however a no less demanding task. But despite all social complexity and contingency, societies are still in one way or another perceived as unities and it appears that law and, more in general, normativity play an important role. It is this perspective that defines the focus of this analysis: the problem of the description of the unity of modern Western society in view of its complexity and contingency. It is apparent that, in order to tackle this problem, we require first and foremost a concept of society and an understanding of complexity and contingency as social phenomena. In view of these requirements, Niklas Luhmann’s social systems theoretical account of society is considered as a plausible theoretical offer. The central question is therefore if Luhmann’s approach accounts for the unity of modern Western society and the role normative aspects play in the observation and description of society. If so, it is possible to describe the unity of modern Western society, taking into account its multitude of options and possibilities. Such a description is necessary, since it offers a framework to analyze not only the possibilities but also, and maybe even more so, the impossibilities of law and politics to limit and transform social complexity and contingency. If we want and need to know what law and politics can and cannot contribute to social order, we need to know how social order is constituted within the unity of a society. But how to observe unity or rather: how to understand unity within the context of Luhmann’s theory of society? In order to operationalize this concept, some important criticisms concerning Luhmann’s approach were inventoried in the Introduction. Luhmann’s theory of society provoked a variety of criticisms ranging from a difficult if not impossible empirical application of his social systems theoretical approach, the problematic or even impossible interaction between social systems, difficulties to define the precise nature of the elements of social systems (more specifically; of the legal system), a regulatory crisis as an unavoidable but mostly theoretical consequence of social systems theoretical approaches and the dehumanization of social theory (since human beings do not ’belong to’ a social system such as society but merely to the environment). The common ground of criticism of the above kind is the social systems theoretical dictum concerning the operational closure of social systems. Operational closure, it must be noted, goes hand in hand with cognitive openness of social systems. Nevertheless, all (critical) eyes are upon the operational closure as this leads to the ‘banishment’ of individuals to the environment of society, fences off social systems with regard to intersystemic interaction hence causing a regulatory crisis. At the same time, and despite all operational closure, it remains difficult to demarcate between social system and its environment, in terms of the nature of the systemic elements. The question that precedes these criticisms, however, is if it is indeed adequate to describe social systems as operationally closed (and yet cognitively open). Operational closure contributes to the unity of social systems. In fact, it is a primary mechanism to bring about this unity, since unity is – in social systems theoretical perspective – brought about by the system itself. At a basic level this unity refers to operations of social systems, which are communications. Operational closure becomes manifest or observable in the capability of social systems to demarcate their boundaries in view of their environment. So, in view of a possible description of the unity of contemporary society and the social systems theoretical offer in this regard, the analysis centers on the demarcation of social systems, more in particular of law and society. Chapter 1 introduces central concepts of the categorical framework that are necessary for the analysis of Luhmann’s theory of society. Therefore, Chapter 1 deals with concepts such as autopoiesis, self-reference, complexity and contingency. In the tradition of social theory, Luhmann’s theory of social systems centers on the question of the possibility of social order. He tackles the question in an unorthodox way: Luhmann’s point of departure is the improbability of social order. Social order is rather improbable, according to Luhmann, because of its key features: contingency and complexity. Contingency, understood as neither necessary nor impossible, is an ‘absolute’ problem that cannot be solved. Luhmann especially repudiates recurrence to normative consensus as a solution for the problem of contingency. Contingency presents a problem in so far as it implies a multitude of options, and thus necessitates selection. In this respect, contingency triggers system building. The other ‘obstacle’ as regards social order is complexity. Complexity refers, to put it simple and in a general sense, to the state of affairs wherein all elements within a unity cannot be connected with each other at the same time. Consequently, complexity also implies the necessity of selection. The differentiation of social systems seeks to contribute to the reduction and control of both contingency and complexity. After his so-called ‘autopoietic turn’ in the eighties of last century, Luhmann understands social systems as self-referential systems: they produce and reproduce themselves with and through communications and communications only. Everything that is brought about within the system – elements, structures, processes, unity – is a performance of the system itself. Consequently, social systems are operationally closed. It follows that human beings belong to the environment of social systems and are not elements of social systems. This theoretical decision provoked a lot of discussion and criticism in terms of the dehumanization of society, the loss of a normative and ethical basis, banishment of the individual out of sociality and so on. Criticism of this kind is however not very adequate and misses the point. Luhmann does not seek to exclude human beings from sociality and underlines the indispensability of the ‘human’ environment. Instead Luhmann refrains from describing human beings since we are essentially black boxes to each other, intransparent and highly complex. But if society does not ‘consist’ of human beings, the matter of its constitutive elements requires further examination. Society is, within this context, understood as a social system to which human beings make indispensable contributions but they are not a part of the system. With this finding, the realm of Luhmann’s theory of society is entered into in Chapter 2. His theory of society covers the description of several social systems: society itself, functional subsystems, organizations and interactions. Even though there is no hierarchical order regarding different types of social systems, society is in Luhmann’s view the all-compassing social system. Society is constituted by all communications and differentiated from the non-communicative environment. Within society, the system/environment distinction is repeated and several systems are differentiated. Modern society differentiates functional subsystems, such as the legal and the political system, the economy, religion, moral, art, science and so on. Besides functional subsystems, Luhmann distinguishes organizations and interactions. All types of social systems have in common that they contribute, at the general and abstract level of sociality, to the reduction and control of complexity and contingency. Each type of social system does so by means of selection, based on a distinction. Society differentiates between all actual communications and non-communicative operations. This is the basic differentiation, allowing for all further differentiations. Interactions differentiate themselves within society based on the distinction between presence and absence. Organizations operate through the membership rule and differentiate between decisions and other communications. Since Luhmann understands modern society as a functionally differentiated societal system, he also discerns functional subsystems. Functional subsystems also differentiate ‘strings’ of communications within society. A binary code is the pivotal mechanism to this end. In case of the legal system for example, the binary code consists of the positive value legal and the negative value illegal. The political code in a modern society is constituted by government/opposition. Besides a binary code, all functional subsystems have programs at their disposal that attribute communications to one of the values of the code. Code and program are related to the function a functional subsystem executes on behalf of modern society. For example, the legal system provides for the stabilization of normative expectations, the political system guarantees collectively binding decisions. Notably, both functions seek to contribute to the reduction of complexity and the control of contingency within a specific – that is: m...

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