Coordinators: Germano Schwartz (Uniritter), Aldo Mascareño (Universidad Adolfo Ibáñez)
Description of the meeting
On November 6th 1998 Niklas Luhmann died in Oerligenhausen, Germany. Born on December 8th 1927 in Lüneburg, northern Germany. Niklas Luhmann was one of the most original sociologist of the 20th century whose intellectual influence extended into the 21st century on the numerous fields his work addressed. His originality comes from a particular combination of continuity and disruption in theoretical matters –continuity in some of the central topics of the tradition of social sciences, and disruption regarding the epistemological foundations, the radical interdisciplinarity of his approach, and above all, the far-reaching renewal of the systemic paradigm in social sciences. Luhmann’s work allowed sociology to enter in fruitful interchanges with the dynamic field of complexity sciences by constructing a common language and expanding the agenda of modern social theory to the conflicts and paradoxes of modern world society of our century.
In spite of his manifold contributions in theoretical sociology, philosophy, political science, economy, arts, education, and science, a.o., it is not an overstatement arguing that Luhmann’s most profound, systematic, and detailed contribution was made on the field of law –or to express it in Luhmann’s style, on the field of the law of society. In the 1960’s, we can find Luhmann’s books on administration, regulation, fundamental rights, law and automatization, and procedural legitimation; in the 1970’s, we have books on law and contingency, and legal dogmatics were developed; in the 1980’s, Luhmann addressed the process of differentiation of the law system; and in 1993 appeared his major work on law Das Recht der Gesellschaft. His original formation in law sciences certainly influenced this systematic interest on legal topics, but not just that. As Luhmann himself stated it: “My interest was to think from cases, and to build the cases into a definite order. Furthermore, I was particularly interested in comparative legal analysis, which in a certain way prepared the engagement with sociology, because in doing comparative legal analysis one must be able to sociologically explain the different relations” (Luhmann 1987: 130). In other words, Luhmann’s theoretical technic and form of theory-building was methodologically influenced by the adopted legal approach; the discovering of sociology was a successful result of this attitude. Furthermore, as Johannes Schmidt (2014) has argued, this ‘thinking from law’ had another consequence: Luhmann firstly approached his object aiming at identifying the potential for connectivity of events within the rationality of the system, as law it self has to do it, since law has to turn to its own structures (norms) in order to come up with a legal decision. Only in a later period he adopted the position of a second order observer who assessed law and other social systems regarding their function and communication.
Besides the thematic and methodological importance of law along Luhmann’s life, or more precisely, because of that, different generations of scholars from different regions of world society became interested in the many possibilities of analyzing law with the instruments of systems theory. The first wave took place in Europe especially with scholars from Germany and Italy, and covers today several centers of systemic thinking across Europe (in Switzerland, England, Denmark, and Spain). Parallel to the expansion in Europe, a great deal of interest in systems theory appeared also in Latin America and North America, in countries like Brazil, Chile, Spain, and Mexico (Rodríguez 2014). And in the last decade scholars from Japan, China, and USA are working within, or nearby the systemic paradigm. The most addressed issues in the intersection of law and systems theory are constitutions and transnational constitutionalism, legal pluralism, reflexive regulation, State and statehood, governance structures, human rights, fundamental rights, functional differentiation of law, inequality and the role of law, legal reforms, development and the role of law, societal crises and law, law and risk, legal decision, theory of law, and philosophy of law, a.o.
As seen, systems theory of law is currently one of the most active, originally varied, and expanded socio-legal theories contributing to both the production of knowledge on the intersection of law and society and the discussion of new legal phenomena arising in world society.
Not only because of the immanent claim at universal applicability of systems theory (Luhmann 2008), but also because of this worldwide expansion and extended network of scholars working on legal matters with a systemic approach, our workshop offers a unique opportunity to observe how law is contemporarily constructed in different regions of world society, and what is the state of the art of systemic research on this field. To that extent, the aims of our workshop are the following:
- Observing and assessing the paradoxes in the making of law in world society;
- Confronting systems theory based views on law arising in different regions of world society;
- Addressing critical issues in contemporary legal theory with the analytical tools of systems theory and complementary approaches.
Our two-days workshop will be organized around four main topics:
- With Luhmann and beyond – Conceptual innovations (first day, morning) –including new analyses on the role of the Luhmannian sociology of law, complementarities with other approaches, relations between legal theories and the systemic approach.
- Constitutions and the role of law in world society (second day, morning) –including legal pluralism in world society, national and transnational constitutionalism, law and immunity, law and crisis.
- Systems theory of world law – Applications 1 and 2 (first and second day, afternoon) –including analyses on the new challenges of law in world society (e.g. empirical research on social systems and regional societies: Europe and Latin America).
Twenty years after Luhmman’s death, his contribution continues expanding. In this workshop we celebrate Luhmann’s legacy by discussing with socio-legal scholars with an active engagement in a systemic comprehension of the paradoxes of our contemporary world.
Our experience in Oñati
There is no doubt that Oñati offers a fascinating natural, architectonic, and historical environment for reflection and scholarly exchange. In addition, the careful organization provided by the members of the International Institute for the Sociology of Law reinforces the conditions for a productive and satisfying meeting.
From 25 to 27 July 2018 we met at IISJ. The general aim of our workshop was addressing critical issues in contemporary legal theory with the analytical tools of systems theory and complementary approaches. Our most intimate goal was to commemorate the 20 years since the death of Niklas Luhmann. Colleagues from Chile, Brazil, Colombia, Germany, Italy, Denmark presented for around one hour each on different topics related to the Luhmannian sociology of law. Responsive sociology of law (Alfons Bora), sociology of constitutions (Albert Febbrajo, Germano Schwartz), connectivity and interlegality (Poul F. Kjaer), experience and psychic systems (Pierre Guibentiff), human rights (Patricia Herrera), crisis (Aldo Mascareño), norms (Rodrigo Cordero), and universalism (Daniel Chernilo) were the keywords of our discussions. A special guest of our meeting was Niklas Luhmann himself. In the early nineties, Niklas Luhmann held a conference at Oñati. Chair of that conference was an even younger Pierre Guibentiff, who kindly organized the video presentation at the end of our meeting.
After this experience, we only have to thank our colleagues for coming to Oñati and for their engagement in the discussions. We also thank Malen Gordoa Mendizabal for organizing our stay at IISJ and its former Scientific Director, Vincenzo Ferrara, for accompanying us in this opportunity.