The concepts of good governance and also good administration have increased in popularity over recent years. They have found a convincing conceptual niche on a European and global level. This is also visible in scholarly activity; from the early 1990s on, there has been a wave of good governance talk and consequently, research and criticism. In this article the concepts of good governance and good administration are discussed from a discursive standpoint. The main claim is that the concepts are over-inclusive (...) and can signify a plethora of meanings. Consequently, the mechanisms of this indeterminacy are studied; the criteria according to which good governance and administration are defined vary. This is exemplified in the contexts of the EU and the Council of Europe. Accordingly, different “good-nesses” can contradict each other. It is suggested that the different discourses or vocabularies of good governance and good administration form closed systems of meaning which identify only claims which adhere to their own rationality. Furthermore, these different meanings enable different forms of exercising societal power. The approach is inspired by systems theoretical reading of discourses. (shrink)

ENGLISH ABSTRACT: This thesis is a philosophical exposition of violence informed by two theoretical positions which confront complexity as a phenomenon. These positions are complexity theory and deconstruction. Both develop systemsbased understandings of complex phenomena in which relations of difference are constitutive of the meaning of those phenomena. There has been no focused investigation of the implications of complexity for the conceptualisation of violence thus far. In response to this theoretical gap, this thesis begins by distinguishing complexity theory as a (...) general, trans-disciplinary field of study from critical complexity theory. The latter is used to develop a critique and criticism of epistemological foundationalism, emphasising the limits to knowledge and the normative and ethical dimension of knowledge and understanding. The epistemological break implied by this critique reiterates the epistemological shift permeating the work of, among others, Friedrich Nietzsche and Jacques Derrida. In this context, critical complexity theory begins to articulate the idea of violence on two levels: first, as an empirical, ethical problem in the system; and, secondly, as asymmetry and antagonism. Violence in this second sense is implicated in the dynamic relations of difference through which structure and meaning are generated in complex organisation. The sensitivity to difference and violence shared by critical complexity theory and deconstruction allows for the parallel reading of these philosophical perspectives; and for the supplementation and opening of critical complexity theory by deconstruction within the architecture of this thesis. This supplementation seeks to preserve the singularity of each perspective, while exploring the potential of their points of affinity and tension in the production of a coherent philosophical analysis of violence. Deconstruction offers a more developed understanding of violence and a wealth of related motifs: différance, framing, law, singularity, aesthetics and others. These motifs necessitate the inclusion of other philosophical voices, notably, that of Nietzsche, Arendt, Kant, Levinas, and Benjamin. In conversation with these authors, this thesis links violence to meaning, to its possibility, to its production and to the process by which meaning comes to change. Given these links, violence is conceptualised in relation to the notion of difference on three distinct levels. The first is the difference between elements in a complex system of meaning; the second is the notion of difference between systems or texts around which boundaries or frames can be drawn; and the third is the notion of difference between meaning and the absence of meaning. This discussion examines the relationship between this violence implicated in the constitution of meaning and the more colloquial understanding of violence as atrocity, as rape, murder and other socially, politically and ethically problematic expressions thereof. It is to empirical violence, following Derrida and Levinas, that we are called to respond and to intervene in the suffering of the other. The ethical and political necessity of response anchors this discussion of violence. And, it is towards the possibility of an adequate response – the possibility of an ethics sensitive to its own violence and a politics that is directed at the eradication of empirical violence – which this discussion navigates. (shrink)

Abstract. It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these approaches, (...) we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria , and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research. (shrink)

The Politics of Orientation provides the first substantial exploration of a surprising theoretical kinship and its rich political implications, between Gilles Deleuze's philosophy and the sociological systems theory of Niklas Luhmann. Through their shared theories of sense, Hannah Richter draws out how the works of Luhmann and Deleuze complement each other in creating worlds where chaos is the norm and order the unlikely and yet remarkably stable exception. From the encounter between Deleuze and Luhmann, Richter develops a novel take on (...) postfoundational ontology where subjects and societies unfold in self-productive relations of sense against a background of complexity. The Politics of Orientation breaks and rebuilds theoretical alliances by reading core concepts and thinkers of Continental Philosophy, from Leibniz to Whitehead and Marx, through this encounter. Most importantly, the book puts Luhmann and Deleuze to work to offer urgently needed insight into the rise of post-truth populism. In our complex democratic societies, Richter argues, orientation against complexity has become the ground of political power, privileging the simplistic narratives of the populist right. (shrink)

Cesare Beccaria’s On Crimes and Punishments has had a profound impact on, and made significant contributions to, among others, the study of law, justice, crime, and punishment. Unsurprisingly, there is a voluminous literature on this text. This article subjects Beccaria’s treatise to an exegetical reading and focuses on the aesthetic inquiry at heart of the text. Beccaria professes to undertake a rigorous scientific inquiry into crime and punishment. He repeatedly invokes language from modernity and the enlightenment—e.g., probability, correlation, and other (...) mathematical tools (e.g., geometry)—to ground the scientific nature of his treatise. Yet, what Beccaria engages with is aesthetic and what is produced is not scientific knowledge but aesthetic knowledge. Rather than read this as a criticism, the article highlights how the concept of justice—like beauty or virtue—is, and can only or largely be, a matter of aesthetic inquiry, and explicates why Beccaria’s text ought to be read as an aesthetic inquiry into justice. (shrink)

This study uses a Corpus Assisted Discourse Studies methodology to provide the first systematic analysis of how trust is discursively constructed in crypto-drug markets. The data come from two purpose-built corpora. One comprises all the forum messages posted on the flag ship crypto-drug market Silk Road during the years in which it traded on the hidden net. The other corpus comprises all the reports published by the United Nations Office on Drugs and Crime during the same period. Our analysis of (...) trust focuses on the identities of those buying and selling drugs. The findings reveal that the Silk Road community members regularly discussed vendors’ identities alongside a continuum of trust–risk calculation, explicitly identifying both ‘good’ and ‘bad’ practices and hence engaging in self-regulatory discourses, and mainly constructed drug users’ identities in relation to values of expertise, integrity and benevolence. The findings also suggest that hard law enforcement activity, such as crypto-drug market closure, may encourage technological innovation within these markets. Moreover, our results show a disconnect between the discursive reality of the policy-making documents we examined and the very crypto-drug markets that they seek to legislate. (shrink)

In this book, William Brant inquires how violence is reduced. Social causes of violence are exposed. War, sexual domination, leadership, propagandizing and comedy are investigated. Legal systems are explored as reducers and implementers of violence and threats.

Russia’s war against Ukraine has grave consequences in several political categories. These include: a reassessment of the school of ‘political realism’, one of whose proponents claims to have predicted the war. Was the West partly ‘responsible’ for the war? Second, to what extent does the war of aggression, as an undeniable violation of law, damage the status of international law and justice? Third, the war is embedded in political developments that stretch back a century. It is examined in its context (...) within American foreign policy since the Wilsonian peace programme, in relation to the dangerous reluctance of the EU to pursue a decisive geopolitical policy towards Russia, and interpreted in the light of Stalinist echoes within Russian politics. (shrink)

To integrate social robots in real-life contexts, it is crucial that they are accepted by the users. Acceptance is not only related to the functionality of the robot but also strongly depends on how the user experiences the interaction. Established design principles from usability and user experience research can be applied to the realm of human–robot interaction, to design robot behavior for the comfort and well-being of the user. Focusing the design on these aspects alone, however, comes with certain ethical (...) challenges, especially regarding the user’s privacy and autonomy. Based on an example scenario of human–robot interaction in elder care, this paper discusses how established design principles can be used in social robotic design. It then juxtaposes these with ethical considerations such as privacy and user autonomy. Combining user experience and ethical perspectives, we propose adjustments to the original design principles and canvass our own design recommendations for a positive and ethically acceptable social human–robot interaction design. In doing so, we show that positive user experience and ethical design may be sometimes at odds, but can be reconciled in many cases, if designers are willing to adjust and amend time-tested design principles. (shrink)

The current inclination, at the European level, to fund education in the form of projects radicalises the modern orientation towards the present as the attempt to bind a yet indeterminate future. This article proposes a close re-reading of Niklas Luhmann’s sociological oeuvre in order to problematise the place of the present in modern education. In an effort to sketch out the need for a new educational ecology, it then draws attention to how transnational projects articulate their educational meaning.

This paper’s aim is to promote greater interest in courtroom practices of minute-taking—the preparation of written documents that constitute a record of what was said and done in the courtroom during a case hearing, very often based on a judge’s dictation of rephrased questioned person’s statements to a clerk who records them. This aim is achieved through discussion ultimately focused on the distinguishable aspects of minute-taking, its possible underlying mechanisms, and further consequences, followed by some remarks concerning the judge–clerk relationship (...) outside the scope of minute-taking and more direct discussion of clerks themselves. The discussions and analyses presented here are empirically-grounded, forming a side result of a larger research project conducted in a Polish lower court that combined observations of case hearings with witness interviews. Despite their inadvertent origin, the investigations presented here demonstrate the complexity and multifaceted nature of minute-taking to a greater extent than previous relevant studies have revealed. While minute-taking has not been neglected entirely in legal research, there remain many questions to be addressed. This paper suggests some of these questions as well as potential directions for future research on minute-taking through discussion of how the identified aspects of minute-taking can be utilized and which theoretical frameworks may be applicable. Although the paper is a result of empirical research conducted in Poland, its aims are relevant outside the Polish context, particularly in other continental European countries where minutes are also taken from case hearings. (shrink)

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...) protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

Autopoiesis and systems theory are terms often treated as synonymous by lawyers. This sleight‐of‐phrase elides the space between autopoiesis and systems theory, removing its content. Within this eliminated space there exist numerous understandings of systems approaches in law; one such understanding is complexity theory. Complexity theory entails a very different systems view of law to that of autopoiesis. In this paperIexplore the concepts of complexity and their relevance to law. In tracing an outline of complexity, a number of contradictions, paradoxes, (...) and additional questions are exposed which require further detailed analysis in the future. (shrink)

El artículo analiza el rol que cumple la confianza en la construcción de la realidad social, argumentando que constituye uno de sus componentes esenciales. Lo es porque hace posible el nacimiento, permanencia y reconocimiento colectivo de las instituciones, así como su iteración y organización en subsistemas.

Besides their skepticism about universal reason and universal morality, the Frankfurt Schools of Critical Systems Theory and Critical Theory share basic assumptions: (1) the thinking in societal-systemic, institutional concepts, which transcend simple reciprocal relations by dint of their complexity; (2) the assumption that society is based on fundamental paradoxes, antagonisms, antinomies; (3) the strategy to conceptualize justice as a contingent and transcendental formula; (4) the form of immanent (and not morality-based, external) critique as an attitude of transcendence; (5) the aim (...) of societal (and not only political) emancipation in an ‘association of free individuals’ (Marx). The article focuses on those parallels and aims to conceptualize a critical turn-around of autopoietic systems theory. (shrink)

Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. (...) These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

Legal Information Retrieval (IR) research has stressed the fact that legal knowledge systems should be sufficiently capable to interpret and handle the semantics of a database. Modeling (expert-) knowledge by using ontologies enhances the ability to extract and exploit information from documents. This contribution presents theories, ideas and notions regarding the development of dynamic electronic commentaries based on a comprehensive legal ontology.

Anthropocene jurisprudence amounts to a legal attitude that posits human beings as the ultimate subject to which the legal ontology, epistemology, and language serve. This attitude inevitably leads to exceptionalism not only in terminology but also in the impact which legal verdicts incur, especially on the natural environment and species. In this paper, we make a coupled reading of jurisprudence and environmental science while suggesting a post-Anthropocene model of law which can be made philosophically consistent by appropriating a new theory (...) of human as a 'biocultural creature' to outgrow the attitude of exceptionalism in law. In doing so, we take recourse of dynamic systems and complexity theory for a law to account for the ontology, epistemology and linguistics of post-Anthropocene jurisprudence. (shrink)

This article focuses on theoretical reflections on sovereignty and constitutionalism in the context of the globalization and Europeanisation of the nation states, their politics, and legal systems. Starting from a critical assessment of the Kelsen-Schmitt polemic, the author claims that sovereignty needs to be analysed by the sociological method in order to disclose its current structural differentiation. The constitution of society may be imagined as the multitude of self-constituted and functionally differentiated social subsystems. The constitutional pluralism argument subsequently reconceptualizes sovereignty (...) as socially differentiated and divided between specific subsystems. The EU's differentiated constitutional domain and the paradox of divided sovereignty are used as examples of profound structural and semantic changes in contemporary national and transnational societies. While the sovereign nation-state institutions have become marginalized in political structures of European societies, the self-constitutionalization of the functionally differentiated EU legal system proceeds by internalizing the concept of divided sovereignty and using it semantically as its mode of self-reference. (shrink)

Autopoiesis is normally considered to be the systems theory in law. In this paper complexity theory is presented as an alternative systems approach. In order to position complexity theory as a plausible alternative to autopoiesis I discuss the differing understanding of boundary within each theory, and use this as a vehicle to critique autopoiesis. My critique is situated within systems theory thinking but is external to both autopoiesis and complexity theory. Because both approaches possess an understanding of boundary it provides (...) an effective tool to contrast their differences, while permitting each to be described in its own language. It is argued that complexity theory offers an approach to boundaries as contingent, emergent interfaces, which the autopoietic construction of boundary can learn from in several ways. More generally it is suggested that the complexity approach to boundaries offers lawyers engaging with systems theory a new critical perspective to assess legal constructions. (shrink)

This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, recurring issues regarding Kelsen’s theory (...) of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

This article discusses some possibilities for a critical interpretation of Niklas Luhmann’s systems theory. On the one hand, this theory could provide a sophisticated new sociological account of well-known modern social pathologies, such as alienation and reification; on the other, it could be considered a crypto-normative model for the reciprocal mediation between system and environment in which neither blind tautologies nor colonizations would take place. I argue that as a normative model this theoretical matrix seems to resonate with aspects of (...) Adorno’s negative dialectics between subject and object and that the involuntary promise it contains could be fully realized only under other social conditions. The article also presents a preliminary critique of neoliberalism reconceptualized in systems theoretical terms as a dedifferentiation machinery that aims at establishing the primacy of economic rationality and the formation of ‘industries’ in different social spheres. (shrink)

For Niklas Luhmann the body seems to almost disappear in modernity. Modern society, he argues, is a system comprised of a number of operatively closed and functionally distinct sub-systems such as economics, science, law, the mass media and so on. Each system is autonomous and observes the world in its own terms via its internal communications. Thus, Luhmann’s sociology is generally characterized as a post-human one. That is, one in which the basic unit of both social agency and sociological analysis (...) is not the embodied human subject but rather instances of impersonal communication. This article offers a challenge to this by arguing that the body still has a significant function in Luhmann’s account of social systems. My claim is that the body has the ability to migrate between different systems and, thus, has a transcendent status in social systems. That is, the body can migrate between social systems and, in Luhmann’s terms, irritate them in significant ways. (shrink)

This note examines the decision of the Family Division of the High Court in N. v. N. (Jurisdiction: Pre-Nuptial Agreement) in which, in the context of Jewish divorce proceedings, the Court found that it had no jurisdiction to order a husband, by specific performance of a marriage agreement, to go through the procedure to obtain a ‘get’ (a hand-written bill of divorcement) allowing his wife to remarry. First, discussion of the case is contextualised broadly within the debate on the (de)merits (...) of employing legal means in order to redress social wrongs. Secondly, adopting a theoretical perspective upon the difficulties involved in using law to achieve social change, the note goes on to examine more specifically why women from minority cultures may choose to go to the law of the dominant culture in order to obtain relief. (shrink)

Service and personal care robots are starting to cross the threshold into the wilderness of everyday life, where they are supposed to interact with inexperienced lay users in a changing environment. In order to function as intended, robots must become independent entities that monitor themselves and improve their own behaviours based on learning outcomes in practice. This poses a great challenge to robotics, which we are calling the “autonomy-safety-paradox” (ASP). The integration of robot applications into society requires the reconciliation of (...) two conflicting aspects: increasing machine autonomy and ensuring safety in end-use. As the level of robot autonomy grows, the risk of accidents will increase, and it will become more and more difficult to identify who is responsible for any damage incurred. However, emphasizing safety impairs the autonomous functioning of the robot. This problem implies the need for a broadened concept of product safety. Our comparative study shows that the institutional framing of the ASP as well as concrete solutions to this problem differs between Europe and Japan in two respects: (1) the understanding of robot agency and (2) the concept of “appropriate” user–robot interaction. (shrink)

Autopoietic theory is increasingly seen as a candidate for a radical theory of law, both in relation to its theoretical credentials and its relevance in terms of new and emerging forms of law. An aspect of the theory that has remained less developed, however, is its material side, and more concretely the theory’s accommodation of bodies, space, objects and their claim to legal agency. The present article reads Luhmann’s theory of autopoietic systems in a radical and material manner, linking it (...) on the one hand to current post-structural theorisations of law and society, and on the other hand extending its ambit to accommodate the influx of material considerations that have been working their way through various other disciplines. The latter comprises both a materialisation of the theory itself and ways of conceptualising the legal system as material through and through. This I do by further developing what I have called Critical Autopoiesis, namely an acentric, topological, post-ecological and posthuman understanding of Luhmann’s theory, that draws on Deleuzian thought, feminist theory, geography, non-representational theory, and new material and object-oriented ontologies. These are combined with some well-rehearsed autopoietic concepts, such as distinction, environment and boundaries; Luhmann’s earlier work on materiality continuum; more recent work on bodies and space; as well as his work on form and medium in relation to art. The article concludes with five suggestions for an understanding of what critical autopoietic materiality might mean for law. (shrink)

Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular discourse, despite post-truth’s only recent emergence as a concept. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues however that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. (...) While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. However, the most persistent question which law must deal with, and indeed the most persistent question within legal philosophy, relates to a deeper form of inquiry into truth: the question of legal truth. In simple terms this refers to the correctness of any particular proposition of law. Within legal theory, this expands to the larger question of what makes, in general, any legal proposition valid, or true. Reflecting upon legal scholarship through the lens of truth reveals that theories of law can be broken down into two broad and radically distinct categories. On the one hand, there exist empirical accounts of law which fundamentally understand questions of legal truth as social questions whose answers are empirically demonstrable. On the other hand, there are ‘idealist’ accounts of law which view legal content, and hence truth, as existing in some way or other in a manner which transcends social practice and which is autonomous from it. Both of these classical accounts, while radically different, share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. However, such accounts of legal truth share many other unstated aspects, and are largely based upon ideas which place the separateness and completeness of legal systems at their heart, providing either a unified ideal or a unified empirically observable social practice. However, they are share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal or, at times, constitutional ‘pluralism’. This post-modern turn within law has also produced therefore what we might call a form of post-truth within law. This is particularly significant because it places under great strain both the empirical and ideal accounts of legal truth and require us to re-elaborate an account of what makes a legal proposition true. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued in this Chapter that, in the legal context at least, post-truth allows for the transcendence of the empirical/ideal divide and the revealing of deeper forms of legal truth and our ability to account for them through theory or, put more simply, explanation. Upon greater reflection, legal truth is generated by the very forms of argument, or modes, which allow access to it. Such forms of argument exist also to produce legal truths outside and between legal orders where these appear to conflict or collide. While some legal scholars and others claim that such pressures on structures of knowledge reveal the end of the potential for law to generate truth, it is argued here that, on the contrary, they require a more open and more transparent use of the pure methods and modes of reason which both reveal but also generate legal truth in the first place. This is relevant to post-truth more generally in one specific way, despite the numerous idiosyncrasies of legal truth and knowledge: when assertions of truth within structures of power seem to come to embody the perspectivism and relativism used as methods of deconstruction, the post-modern and deconstructionist projects themselves require radical change: they stay true to their goal of deconstructing structures and discourses of power by applying the classical epistemologies which are rejected by those in power. Just as legal outcomes which are asserted rather than reasoned or justified are most convincingly deconstructed through sober legal modes, so can the post-modernist project find purpose in a world where dominant epistemes seem to have come to embody a simplistic version of post-modernist critiques. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

In this article, we try to trace the relationship between semiotics and theory of legal reasoning using Peirce’s idea that all reasoning must be necessarily in signs: every act of reasoning/argumentation is a sign process, leading to “the growth of knowledge. The broad scope and universal character of Peirce’s sign theory of reasoning allows us to look for new conciliatory paradigms, which must be presented in terms of possible synthesis between the traditional approaches to argumentation. These traditional approaches are strongly (...) affected by either the dialectical (logical) perspective or the rhetorical perspective on argumentation, while Peirce’s approach tends to reconcile the rhetorical and methodological aspects of reasoning. This reconcilation is best illustrated by Peircean analysis of argument’s logical and rhetorical structure; while the diagrammatic (iconic) analysis of arguments is performed in the system of Existential Graphs (which is Peirce’s major methodological system, designed for the expressions of propositions in point of their relational structure). Obviously, Peirce’s original division of argument parts offered only the characterisation of the sign activity (involved in the process of reasoning), and thus left much to be desired in terms of practical explication. (shrink)

Nowadays, on national and international levels, the law has been increasingly considering local and traditional communities’ role for achieving conservation. In Brazil, for instance, one can see how recent legal rules promote benefits for those local groups who practice low environmental impact activities. Nevertheless, regarding traditional fishing communities that live on the coastal zone, a region where many protected areas have been created lately in Brazil, the positive social effects of those measures are often undermined by the economic and political (...) pressure they suffer. This becomes particularly clear when the problem is seen under the different grades of citizenship people face in Brazil: that is, considering how people can be over-included in the legal system to have mainly access to its benefits, while others are under-included to be mainly dependent on it. It seems that Brazilian coastal fishing communities fall into the latter case, and that would explain how they are subject to many different types of restrictions and responsibilities due to the new legal instruments that are being developed to protect such areas, sometimes causing, for instance, a pressure to remove them from their homes. Conservation in this context, then, is to be understood beyond legal texts and, especially, under the evaluation of the social conditions these populations are submitted to. Therefore, this paper sketches the legal development of Brazilian marine protected areas, points out some examples of conflicts involving traditional fishing communities affected by conservation policies, and conceptualizes the relations of over- and under-inclusion they can be considered as part of. (shrink)

Time is central to Luhmann’s writings on social systems. Social systems, as systems of meaning, operate within three dimensions: factual, social and temporal. Each of these dimensions entails selections of actualities from potentialities (or contingencies) within horizons. Whilst the factual dimension involves selections based on distinguishing ‘this’ from ‘something else’, and the social distinguishes between alter and ego (asking with respect to any meaning whether another experiences it as I do), the temporal dimension operates with the primary distinction of before (...) and after. In the temporal dimension, everything is ‘ordered only according to the when and not to the who/what/where/how of experience and action’ (Luhmann in Social systems. Stanford University Press, Stanford, 1995, p. 78). In this paper, we explore the connection between the temporal dimension of meaning within the legal system and its connection to justice. We begin by setting out succinctly the role played by justice within the legal system, as presented by Luhmann, particularly in his book Law as a social system (2004). From this beginning, we move on to consider the relationship between law, justice and time, taking two examples. The first is the temporality of judicial decisions. The second concerns the relationship between the temporal meaning of law’s own operations, and the presumption of innocence. (shrink)

A new form of contracts has emerged between public administration and the single citizen within the last 15 years. The present article will attempt to situate citizens' contracts in a larger systemic framework, in order to understand more fully an increasingly complex public administration that is making new and contradictory demands on public managers. Citizens' contracts emerge naturally as a form in which the individual can undertake a reconnaissance of communication. The contracts are able to connect the codes of law, (...) care, and economy because they can be constructed differently from the perspective of their different codes without losing its character of unity. The semantic incommensurability of the systems of communication that are coupled through the contract is constitutive for the test of will of the single citizen which function a premise making machine of help and support decisions. (shrink)