REVIEWS

REVIEWS

MODERN TIMES NIKLAS LUHMANN ON LAW, POLITICS AND SOCIAL

THEORY TRUST AND POWER. BY NIKLAS LUHMANN, translated by H. Davis, J.

Raffan and K. Rooney, edited by T. Bums and G. Poggi, with an introduction by G. Poggi. [Chichester: John Wiley. 1979. xix and 208pp., f16.55, hardback.]

THE DIFFERENTIATION OF SOCIETY. BY NIKLAS LUHMANN, translated and introduced by S. Holmes and C. Larmore. [New York: Columbia University Press. 1982. xxxvii and 482pp., $35.00.1

I THE work of the German social theorist Niklas Luhmann has, for the most part, been glimpsed in England through the writing of Jiirgen Habermas. He deserves to be better known. Luhmann is, quite self-consciously, a “beyond” theorist. In particular, he attempts to move our thought about society “beyond” Marx, Weber and Parsons. As against Man, he seeks to develop a set of categories which enable us to represent non-economic social relations in a way which is not derived from or grounded in our represen- tations of economic ones. As against Weber, Luhmann seeks to displace a preoccupation with “end-means rationality” and the legitimation of authority as the organising principles of sociological discourse. And as against Parsons, Luhmann seeks to escape the problem-set which poses “normative integration” as the “central question” for the self-understanding of society.

It would be an understatement to describe as eclectic Luhmann’s attempt to stitch together something new. Systems theory and cybernetics, Parsonian action theory, Husserlian phenomenology, Darwinian evolutionary theory, scholastic philosophy, Aristotle and Plat-these and many other residues of the history of thought are ruthlessly plundered for concepts, themes or approaches in the course of Luhmann’s wide ranging investigations into how we should understand the nature of modem life. Drawing primarily upon two recent translations,’ I present in this section a simplified conspectus of Luhmann’s work (one which, it must be said, does scant justice to the depth, subtlety and erudition of his work) and in subsequent sections address some of its implications for law, legal theory and “critical theory.” By the end, persistent readers will find themselves back at the beginning- Luhmann’s own distinctive version of the “hermeneutical circle.”

Luhmann’s primary method is functional analysis of social phenomena and the notion of “system formation” is in essence the point d‘uppui of his investigations. By system, Luhmann means the “interruption of continuity in the spectrum of the possible” ( ~ 3 5 ) ~ : it is thus inevitable in any culture that some degree of system formation is observable, ordering or “intermpt- ing” what is technically OF conceptually possible. The core of Luhmann’s

Twr wad Power is a collection of two essays, Verrruuen (Stuttgart, 1973) and Muckt (Stuttgart, 1975). Gianfranco Poggi’s introduction provides a useful outline of the theoretical context of Luhmann’s thought. The Differenrialion of Society is a specially prepared collection of articles. Because of its wider coverage, it provides a more useful introduction to Luhmann. * All page references are to The Differenriution of Society unless otherwise indicated.

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functional analysis is that as the spectrum of the possible expands, so more elaborate system formation is required. In simple societies, whose categorial systems are frequently indifferent to a distinction between nature and culture: this “interruption” may assume the form of necessity (tabus, gift exchange); in modern societies, argues Luhmann, matters are otherwise. System differentiation, interrupting the spectrum in different ways in different situations, becomes increasingly necessary, as possibilities come to be conceived as such, so that, in principle, everything or many things can be conceived of as being other than they are, or susceptible to change, as necessity is displaced by contingency.

Luhmann repudiates what he takes to be the traditional concept of system-a “whole” made out of parts, where the “order of the whole accounts for qualities the isolated parts could never possess on their own.” This approach fails to take account of the environment of a system. By this he means more than that “something else exists outside the system being studied” (p.257). Rather: “the structures and processes of a system are only possible in relation to an environment” and can only be understood in terms of this relationship. Only by constantly thinking of systems in relation to their environments can one distinguish “between what functions as an element and what functions as a relation between elements” in any given system. When the spectrum of the possible is interrupted, in part, by means of functional system differentiati0n-e.g. politics, law, economy-a functional system becomes part of the environment of other such systems, as they are to it.

What does this relational and orientational view of “systems,” pointing actors in certain ways at any one time out of the range of all possible ways, entail? We must note first the axiomatic point that environments are more complex than systems, since “environments always offer more possibilities than any system can successfully exploit” (p.70), and secondly, that “systems are reductions of the complexity of the world” which means “they must . . . constantly sustain problematic relationships to an environment that is not itself similarly reduced” (p. 192). System “identity” is acquired through its “characteristic means of reducing complexity.” In this respect, systems can be viewed as “selection processes” reducing possibilities: “both their initial formation and their subsequent survival presuppose a reduction or diminu- tion of all those things which are, in principle, possible” (p.70).

The key to Luhmann’s picture of modem times is the “possibilization” of the world and the mechanisms which render this possible and manageable. This is expressed in two central terms-complexity and contingency. “Com- plexity” is the anchor of Luhmann’s functional analysis; “contingency” the key component of how this can be expressed at the “micro-level” of action and communication. Complexity means “the totality of possible events-the complexity of the world is all the possible events in the world, the complexity of a system is all the possible events compatible with the structure of the system” (p.147). Thus a high level of internal complexity of a system involves “allowing alternatives, possibilities of variation, dissent and internal conflicts” which, to be achieved, means that the system’s structure must be “indeterminate, contradictory and institutionalized in a flexible way.” In other words, Luhmann insists, it must be recognised “that the creation of a tolerable indeterminacy in social systems is an achievement and not a

This statement ignores, of course, the study of binary oppositions between nature and culture (as in the Raw and the Cooked) which lies at the core of the work of Claude Uvi-Strauss and his followers.

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mishap” (p.148). Complaints about “bureaucratization,” etc., in Luhmann’s view, show simply how hard this degree of complexity is to attain.

Complexity features throughout Luhmann’s writings in a double movement4n the one hand, he stresses the attainment or heightening of complexity. Here the sources or generators of complexity serve as a key pointer to societal development (or enhanced capacity). On the other hand, he explores the management of complexity, and thus the mechanisms which, in a given situation, serve to reduce it. In this sense, the idea that modern societies are highly complex and have highly developed mechanisms for reducing complexity is. not contradictory. Complexity-reduction is not intended to eliminate complexity, i.e. “decomplicate” society. Continued evolution requires even greater complexity: but greater complexity requires yet more adequate means of pro tern. complexity-reduction. Decomplication (as a future possibility) is associated with a decline in the capacity of complexity-reducing mechanisms, with a “dedifferentiation” of society (see pp.130, 187, 189,215).

Increased complexity in this sense is intimately linked with what Luhmann calls the functional differentiation of society-which involves the “separating out” and “structuring” of the range of possibilities. Differentiation is the most important structural question which arises “as soon as a system transcends the most simple relations in quantity and complexity” (p.213) since differentiation determines “in what further ways a system can structure various processes, regulate itself, and strengthen its selectivity.” “The function of differentiation-the construction of subsystems-“lies in a system’s ability to gain many times over the advantages of system building whenever it repeats system building internally, guarantees its subsystems and their subsystems an already tame environment and thus builds improbable structures that are rich in presuppositions. Systems differentiation is a form of strengthening selectivity” (p.214).

At the level of individual actors, or more precisely, “subjectivity,” complexity is complemented by the concept of “contingency.” This means “that the cause on which something depends performs itself a selection from other possibilities so that the contingent fact comes about in a somewhat chancy, accidental Contingency means that “being depends on selection, which, in turn, implies the possibility of not being and the being of other possibilities. A fact is contingent when seen (my italics) as selection from other possibilities . . . the concept can be applied only to the meaning of subjective experience and action . . . contingency is a universal, but it nevertheless presupposes a subjective point of view. It can be applied to all facts but not independently of a subjective potential to negate and conceive other possibilitie~.”~

It follows, then, that the level of communication between subjects, of “intersubjectivity,” can be represented as one of “double contingency.” “Doubling of contingencies is possible because the potential is located in subjects, and subjects can experience other subjects.”(‘ Consequently, one subject’s selectivity (or experience of contingency) is “doubled” in communication by his interlocutor’s similarly structured selectivity. This involves a situation of high achievement and high risks. “It makes the selectivity of ‘ Luhmann, “Generalised media and the problem of contingency” in J. Loubser, R.

Baum, A. Effrat, and V. Lidz (eds.), Explorarions in general theory in social science: Essays in honor of Talcorr Parsons (New York, 1976), Vol. 11, p.508.

Ibid. p.509. Ibid.


other subjects selectively available at increasing risks (of disappointment of expectations).”’ There are two main ways of reacting to disappcintment of expectations, either a process of learning and adapting one’s expectations (which Luhmann calls “cognitive”) or a counterfactual maintenance of expectations (for Luhmann, a “normative” response). Both are reactions which can be decided upon, adopted, in advance.

In the most elementary sense, all communication requires some degree of system formation, i.e. of differentiation between system and environment. This Luhmann terms the formation of “social systems,” that is, any situation where “the actions of several persons are meaningfully interrelated and are thus, in their very interconnectedness, marked off from an environment” (p.70). But what is crucial is that, “on the basis of a simple set of interrelated choices, only a few out of a wide array of possibilities are actualized.” Luhmann offers a working typology of such selection systems, distinguishing interaction systems, organisation systems, and societal systems. What matters here is the precise way in which self-selection (i .e. meaningful, interre- latedness) and boundary-formation (i.e. marking off from an environment) occur. In interaction systems, i.e. face-to-face interaction-personal pres- ence is both the selection principle and the boundary-formation principle. “Whoever is not present does not belong to the system, no matter how intimate his relations to the on-the-spot participants may otherwise be” (p.71). This may seem a ponderous way of stating the obvioucbut given the centrality of €ace-to-face interaction as the “communicative” model in much social theory, it is important to attend both to its structural limits and to the other types of social system characteristic of at least modem societies.

Interaction systems are limited by the fact that only one person can talk at any one time. Therefore there is a great need for internal order, focusing the discussion on a simple topic; “A plurality of topics can only be handled sequentially. As a result, interlocutors must either restrict their contributions to what is currently being discussed or try to change the subject.” Conse- quently, “tacit power struggles” may arise. All of this is time consuming. And the linear form of the sequence can make it difficult to coordinate complex messages. In other words, such systems are limited in the degree of complexity they can achieve (p.72). As a process of selection and boundary-formation, such a social system is severely circumscribed in what it can attain.

By contrast, the societal system detaches itself from these constraints though not, of course, from interaction itself (p.73). This is “the compre- hensive system of all reciprocally accessible communicative actions.” In this sense, “society” is not just the sum of all pesonal interactions. It expresses processes operating at a quite different level, coordinating, in particular, communication beyond the face-to-face situation, i.e. with “absentees.” Its regulative principle transcends that of interaction systems. Its boundary- formation process--its limit-is the boundary of “possible meaningful communication,” in particular, the limits of “accessibility” and “understanding,” i.e. “abstract” limits (p.73).

The third, distinct type of social system, the organisation system, operates in modern societies in a sense “between” the two levels already considered, with its own principles of self-selection and boundary-formation. The pivot of organised social systems is the linkage of “membership to specific conditions” upon which “entrance and exit” depend. Assuming that the

Ibid.


“behavioural motives of the members” vary independently of each other, nonetheless, “highly artificial modes of behaviour” among a fluctuating membership can be stabilised, by means, e.g., of membership rules. Provided a balance is struck between “the attractiveness of the system and the demands made on” individuals, the organisation will not depend upon “the creation of spontaneous personal motives or moral commitment and consensus for every action required. Motives are ‘generalised’ through membership: soldiers march, secretaries type, professors publish . . .” (p.75).

As the range of possible selections expands, special mechanisms are required for communication. One needs to ask how selections are transmitted and how they are attributed. Selections are transmitted by “specialised” and “generalised” media of communication; they are attributed by two modes of meaningful selection-“action” and “experience.” A selection is attributed to action if its selectivity is attributed to a system, to experience if selectivity is attributed to the environment of a system. These mechanisms of transmission and attribution ensure that there is a transfer of choices which guarantees that some people accept what other people choose. With rising complexity, these mechanisms must “become more efficient and transfer meaning at a higher level of selectivity” (p.201).

Communication presupposes language but, for Luhmann, is not reducible to language: as a generalised symbolic code, language “limits possibilities but does not commit motives” (i .e. one can deceive or lie). Language does not, by i&self, provide for the transmission of selections-“communication is not necessarily effective.” Language contains the capacity for variation, for expressing other possibilities and thus, as language, for saying “no.” “We can disagree or say something unexpected without becoming unintelligible. We can communicate new, surprising, and unsettling messages, and still be understood” (p.266). There is, in this sense, an infinity of possible sentences. Communication theory thus presupposes “a plurality of autonomous centres of selection or choice . . . and poses the question of how, under changing sociostructural conditions, selections can nonetheless be communicated” (p.350). If enhanced complexity is associated, in part, with an increase in linguistic “freedom to introduce deviations and variations” (p.266), so complexity reduction and the management of contingency requires “guarantees for the acceptability of conveyed choices or selections.” One should note here that, although Luhmann’s terminology is ambiguous, the central problem is cognitive rather than normative: the “acceptability” of choices refers primarily not to their “legitimacy” or whatever, but is concerned with the mechanisms through which selections are transferred or understood.

Selection has the general form of ‘‘one out of more than one” which on closer inspection threatens to be infinitely regressive or complex: one out of more than one out of more than one, etc. It is beyond the capacity of human consciousness to grasp in a concrete way such elaborate patterns of selection; something more manageable must serve as a substitute, as a way of encoding and processing the selection. The solution is found in “generalised symbols” which can “represent such patterns on a higher level of abstraction,” which must be phenomenally simple (in order to be “representable,” i.e. to function in effective communication) yet functionally complex (i.e. capable of being set to a whole range of uses and purposes). “Functionally, they must be ‘form’ as a reliable promise of content” and “a cue for quick evocation of attention.” In this form they can serve as concepts to “organise individual selection chains.” Selectivity is patterned by symbolic generalised communication *media, notably, power, money, truth, love. They transmit


reduced complexity, in that they “employ their selection pattern as a motive to accept the reduction so that people join with others in a narrow(er?) world of common understandings, complementary expectations and deter- minable issues.”” These media which serve as substitutes for the patterns of selection are not just “words symbols or codes; they are meaningful constellations of combined selectivity which can be signified by words, symbolized, and codified legally, methodologically or otherwise.”

The role of media in transmitting generalised kinds of messages-power messages, money messages, etc.-is shored up by the differentiation of “action” and “experience” as the mode of attributing selections. “Both ego and alter are supposed to be able to know in advance which way to attribute selections is appropriate in what situation, and both are supposed to be able to expect the complementary attitude of the ~ t h e r . ” ~ A selectivity attributed to “action” is attributed to a system, selectivity attributed to “experience” to an environment. Possible combinations of the modes of attribution by actors engaged in communication become standardised, generalised and differentiated from each other. The four main media of communication which govern transmission of selectivity can thus be cross-tabulated with these possible combinations of modes of attributing selectivity”:

Ego’s experience Ego’s action Alter’s experience Ac- Ec A, - En

Alter’s action Aa Ec An - En (truth) (love)

(money) (power)

Put simply, if I (ego) am communicating with someone else (alter) whether face-to-face or in writing, the content of the communication (language) is codified (power, truth, love, money) and the selections are attributed, in different combinations, on both sides. Which code is being employed is closely interwoven with the process of functional system differentiation in which different subsystems-economy, law, family, science-tend to employ one code rather than the others. The modes of attribution govern the internal “logic” of the different codes, and thereby, explain how they are qualitatively distinct as well as (to a greater or lesser extent) institutionally “segregated.” The cross-tabulation is not meant to be exclusive: Luhmann suggests that “influence” may follow a similar logic of attribution as love, “value commitments” as truth, “art” as money. This branch of Luhmann’s theory seems to me to provide an extraordinarily fruitful way of explaining an undoubted historical process, the precise character of which has still not adequately been specified. How should we express the fact that law and science are now clearly differentiated, thou h once they were not,” or love and power,’* or even love and friendship?’ !? I

“Generalised media . . .”, p.512. Ibid., p.518.

lo This cross-tabulation is taken, with modifications, from Nico Stehr, “The Evolution of Meaning Systems: An Interview with Niklas Luhmann” 1 Theory, Culture and Sociery (Spring 1982), p.38.

To call law “the oldest social science” was not once, but now is, a solecism. C’. Marc Bloch’s suggestion that “when the Provend poets invented courtly love, the

devotion of the vassal to his lord was the model on which they based their conception of the fealty of the perfect lover,” Feudal Sociefy, Vol. I, p.223 (Eng.tr., London, 1962).

l3 Cf. the interesting discussion of the differentiation of love and friendship by Philippe Arits, “Reflexions sur I’histoire de I’homosexualite,” Communications, No. 35 (1982).


know of no other approach which poses these important questions as sharply and as sensitively as Luhmann’s does.I4

The theory of communication is closely linked with Luhmann’s evolutionary theory of functional system differentiation. Evolution means, in effect, enhanced manageable complexity, more possibilities. This requires mechanisms of variation, selection and stabili~ation.’~ Language is the means for articulating variation, the generalised media of communication serve to organise transmission of selections and motivate acceptance of selections. These discrete codes become the “foundation” for the emergence of the functional subsystems (politics, economy, law, etc). It is system formation in this sense which serves to stabilise the patterning of selectivity achieved by the generalised media. The form of system differentiation characteristic of modem societies is functional differentiation.I6 In one sense, this simply means that “specialised” subsystems “use” discrete, generalised media: the political and legal systems use the power code, etc. Such a scheme tends to lead to problems of specifying the relations between subsystems, the mechanics of “interchange” between, for example, economics and politics, and with the question of “primacy” among the subsystems. Luhmann tries to move beyond these problems by articulating a more elaborate notion of differentiation, which connects with his phenomenological approach to “meaning,” “reality” and reflexivity. For Luhmann, functional differentiation is a “replication, within a system, of the difference between a system and its environment” (ibid). It is therefore a ”reflexive and recursive form of system building” (p. 231). Therefore, differentiated systems can be seen as having two kinds of environmentcxternal (“common to all subsystems”) and internal (“separate . . . for each subsystem”) (p. 231). “Differ- entiation . . . reproduces the system in itself, multiplying specialized versions of the original system’s identity by splitting it into a number of internal systems and affiliated environments.” Thus “facts, euents, and problems obtain a multiplicity of meanings in different perspectives”; for example mass education involves “different environmental problems for the political system, for the economic system, for families, for the religious system . . .” (ibid).

This kind of analysis indicates some of the implications of Luhmanxi’s rejection of the whoie-parts focus of classical sociology. As he emphasises,

I‘ It should be noted that Luhmann regards this differentiation in the logic of attribution as “highly, artificial” and “psychologically improbable,” “Generalized Media . . .” (see note 4, supra), p.518. As a result, these improbabilities must be institutionalised through functional differentiation and through mechanisms like trust-see the first part of Trusr and Power. This is just one example of how Luhmann emphasises the “artificiality” of modernity but, as Gianfranco Poggi observes, without the cultural pessimism which is usually linked with such perspectives. .

Is Luhmann takes these concepts from Darwin, in order to describe how social evolution occurs. He rejects any conception of evolution as a necessary, irreversible process. It is not, then, a matter of “finding” macrohistorical ‘‘laws.’’

Luhmann proposes two other types of system differentiation: segmentation and stratification. This typology refers to the “primary scheme” or “pattern” of differentiation (p.242): i.e. it is not a case of societies being either segmentary, stratified or functionally differentiated. “Forms of differentiation do not exclude . . . may even presuppose-each other, but there are limits of compatibility.” (p.243). “Stratification provides more complex environments for subsystems than segmentation, and functional differentiation provides more complex environments for subsystems than stratification.” (p.244) Secondly, functional differentiation (as the primary scheme) is more compatible with other forms of differentiation than stratification which is more compatible with other forms than segmentation. “Thus the degree of compatibility seems to depend on the complexity of internal environments.” (p.244)


“the relation of each single subsystem to society is not identical with the relation of each subsystem to its social environment; nor is this relation to the internal environment simply a set of intersystem relations” (p. 237). In other words, “mass education” should not be viewed just as a “system” in relation to other systems and/or its environment. Rather, functional differentiation must be complemented by the notion of system reference-which expresses the diverse ways in which systems can be oriented.

In modern societies, a subsystem can be seen in relation to the encom- passing total system or “society,” to other subsystems, and to itself (p. 264). The subsystem-society relation should be seen in terms of its function; the subsystem-neighbouring subsystems relation in terms of its performance “received as input and produced as output”; the subsystem-subsystem relation (its relation to itself) as reflection or self-reflection (pp. 264-265). None of these can be reduced to the others (which clearly distinguishes Luhmann from any naive functionalism): neither function, input-output performance nor self-reflection “can alone regulate the selection processes of a subsystem” (p. 265).

An orientation towards performance prioritises the future, temporalising the relationship between means and ends (p. 239). Self-reflection looks backward, reinforcing system identity “so that it can survive novel choices and innovations by reconstructing its past history as a consistent series of intentions and actions” (p. 239), “a history which can be reconstructed as an exploration of concepts, problems, solutions, and idealizations” (p. 238). Function operates as a “present reality,” a mailing address in “communicative relations” (p. 230). Function “directs and justifies communication.” It follows that differentiation of these system-references at the “operative level” will “separate time horizons.” “It will increase complexity-in-time and will put tension on temporal integration.”

The notion of internal environment, of the operational realities of functionally differentiated subsystems, is a little obscure. To develop it, it is necessary to elaborate a little on Luhmann’s treatment of “meaning,” “reflexivity” and “rationality.” This should also clarify where Luhmann stands within the general field of social theory, and reveal the character of the close connection in his work between his meta-theoretical position on truth and rationality, and his substantive social theory. Those who deride sociology get cheap thrills from its alleged overgenerous use of the word “meaningful.” Yet questions of meaning, and the meaning of meaning, are fundamental. Of central concern here is whether “meaning” should be seen as originating in “subjects” or individuals, or whether, crudely, individuals should be seen as preconstituted by “meaning.” This is the problem of the “originary subject.” For Luhmann, “meaning” does not originate in subjects but in social systems, in systems of communication. We have already noted that: “Communication . . . requires that (with the help of structured expectations) boundaries of expectable behavour can be drawn . . . it requires an interruption of continuity in the spectrum of the possible: system formation.” Systems minimally generate “meaning” if we presuppose “a plurality of uncoordinated physical and organic centres of choice and a reduction of what is possible for them through a system that marks off mutually expected behaviour from other possible events” (p. 345). Meaning, then, functions to define boundaries and expectations. But the key fo Luhmann’s rather complex treatmert of meming is provided when he states that “A meaning-generating system” is both “a system which has meaning

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in itself” and “which is accessible to itself as a system which uses meaning” (p. 345).

To grasp this delphic statement, a brief detour is required into the somewhat unwholesome terrain of Husserlian phenomenology. Husserl developed what was perhaps the most radically idealist approach ever to the question, which goes back in some form to Descartes, even Plato, of the relation between thought and the world. The key ideas which Luhmann appropriates are contained in Husserl’s insistence upon the “horizonal” structure of consciousness: as Paul Ricoeur puts it, “every consciousness is a consciousness of . . ,,” that consciousness is always turned towards something. This is called “intentionality.” Hence the primacy of perception for an understanding of consciousness. And in noting this, it becomes clear too that “every present consciousness is discovered to be exceeded by a horizon of perceivability which confers on the world its strangeness and abundance.”” The second crucial aspect, for present purposes, is implicit in the phenomenological enterprise itself; consciousness can be applied to itself, it can explore itself as consciousness-it can proceed “reflexively.”

The concept of horizon is central to Luhmann’s discussion of “meaning,” which he defines as “the conjunction of a horizon of possibilities with selection or choice.” In this sense, meaning “modalizes” selection: “the array of options from which the selection was made is retained and remains visible in the selection” (p. 345) thus permitting selectivity to be “understood, managed and readjusted.” Luhmann stresses that the generation of meaning and meaning use go hand in hand. Systems formation means both that, in a system, actors can proceed meaningfully and that they can use the meaning(s) of a system for operations in that system. This last point, which requires elucidation, captures precisely Luhmann’s use of “reflexivity”-the relation of a system to itself.

Reflexivity serves as a functionally equivalent method of heightening and reducing complexity, and to make meaningful orientation or action possible. However, to be more precise, we must distinguish reflexivity or the process of self-reflection from “reflexive mechanism” or the application of a process to itself, as in thought about thought, making decisions about decision- making, rules about rule-making, research into research.

Reflection is the process “through which a system establishes a relationship with itself,” a process of “self-thematisation” whereby “the unity of a system” is made “accessible to the system’s parts.” “While a part . . . cannot be the whole, it can thematize the whole in so far as it perceives it as a meaning-generating system and relates it to an excluded and thereby delimited environment.” (p. 327). Such self-thematization, or system identification, is only necessary and possible when the system is distinguished and demarcated from its .environment (p. 327). The discontinuity between a system and its environment is both a prerequisite for system identification and enables a system identified as a unity to develop a “multiplicity of different relations to its environment.” This is a kind of phenomenology of social systems: just as for individuals, “becoming a topic in this way means becoming an object for consciousness,” so for social systems, self-thematization means “becoming the object of thematically unified communication.” Focussing upon the unity of the system makes the multiplicity or complexity of relations with the environment easier to manage, serving “as a basic

Paul Ricoeur, Husserl (Eng. tr., Evanston, 1967), p.8. The “world” progressively receded in Husserl’s own pursuit of “pure” consciousness. Like Schutz, Luhmann pulls back from “transcendental” phenomenology. -


reference point for a selective reduction and mastery of environmental complexity” (p. 328). In so far as system unity is explicity topicalised in reflection, meaningful choices become possible even in an “indeterminate and unexplored environment” (p. 328).

A reflexive mechanism-the application of a process to itself or to a process of the same kind-requires functional specification-this is thinking, not something else-such that the process itself has a “lasting identity” (p. 329). This in turn requires boundaries which guarantee the identity of process, just as reflection requires boundaries, or discontinuity between system and environment, so that the unity of the system could be topicalised.

For Luhmann, selectivity can be increased once “the selection mechanism is itself preselected through a second mechanism of the same kind” (p. 100). Equally, more complexity can be managed since complexity reduction is distributed into one or more sequential stages by reflexive mechanisms. For Luhmann, an illustration of this is that more decisions can be made once decision-making processes are themselves applied, reflexively, . to the decision-making process. This may seem counter-intuitive unless we remem- ber that here, as elsewhere, Luhmann is concerned with the double movement of complexity-increased possibilities and their “management.” Reflection upon decision-making as such, and the application of decisions to decisions, is not a universal “capacity” but, in Luhmann’s terininology, an cvolutionary “achievement.” What it permits is not possible in all societies, in many of which decisions about decisions cannot be made “in advance”-where there are limited possibilities of “sequentializing” selection, few if any means of making choices about choices.

One consequence of this approach is that, at an advanced level of functionally differentiated system formation, we reach a stage where, for such systems, “there exist . . . no footholds or reference points outside their meaningfully constituted world. For these systems, reality is meaning” (p. 346). Reflexivity is just one aspect of this. That is, presumably, “reality” must be understood in terms of the processes bounding horizons of possibilities. This is confirmed in his treatment of the “world” as the “total horizon,” simultaiieously concrete and infinite (p. 359 , whose unity “is not the unity of an assemblage” but the “unavoidable, indestructible possibility of moving from one thing to another-not an aggregation, but . . . a correlation of meaningful experience and action” (p. 411, n.48).

One final central component in Luhmann’s analyses is time, and the “temporalization” of selections: “what is new about modern societies lies neither at the causal nor at the normative level. Instead, there has been a change in the temporal horizon that priniarily controls present selections. Present selections are chiefly made with an eye no longer to past but to future selections” (pp. 321-322). The future becomes the “horizon” for making selections. More precisely, the “future” and the “past” must be seen as “temporal horizons” of the present. The key point about “horizon” in this sense is “that although we can never touch it and never surpass it, nevertheless it contributes to the definition of our situation” (p. 278). Consequently, in a memorable phrase, “the future cannot begin.” The “future,” in fact, must be analysed into “present futures” and “future presents.” We live in a world with an “open future” which means a “present future that leaves room for several mutually incompatible future presents” (p. 278). We experience this future “as an horizon of surplus possibilities that must be drastically reduced as we approach them” (p. 279). It is in this sense that insecurity may be preferred to security, and that “the future” can


be used in many ways without beginning it. Specifically, we use the future in two different ways, either as a present future, as a “screen upon which to project hopes and fears,” the future as a utopia; or as one or more future presente the “future” used by technology of “anticipated presents.” Main- taining some kind of provisional integration of both utopias and technologies is essential for orienting and motivating political systems, especially by means of postponing choices in the sense of the “deferral of negation” (pp. 286-287).

Luhmann does not exempt “truth” or rationality from these analyses (so that, inevitably, as he acknowledges, he is in a circle (p. 411, n.49 and see below). At the advanced stage of functional differentiation, truth becomes a “subperspective”: as a generalised medium of communication, conveying “experienced selections, whose selectivity is attributed to the world,” the perspective of science “can only be identified with the perspective of total society” through an hypostatisation of the part for the whole. But self- reflection by the scientific system makes this impossible, once it leads the scientific system to comprehend itself as one functional subsystem of society (pp. 360-361).

I1 For Luhmann, modern law is a functionally differentiated and autonomous subsystem. His definition of this system is broadly drawn: “The legal system consists of all social communication that is formulated with reference to law.” “The legal system . . . includes both right and wrong, legal as well as illegal behaviour. In fact, its identity as a system hinges precisely upon this disjunction” (p. 122). Conceptualised as a functionally differentiated subsystem, we can then employ the notion of system references to pose precisely the different relations of a legal system-to its environment (function), to neighbouring subsystems (performance) and to itself (self-reflection). Of what does this functional specificity consist? As we have seen, Luhmann’s interest is in selectivity and boundary-formation in communication systems. Law, of course, is a way of constraining behavioural expectations. But Luhmann argues that there are some peculiar “law-related” constraints, whose “separation and recombination” in communicative processes constitute the conditions for legal autonomy.

First, the power to decide if law is to be invoked or cot,” invocation sovereignty-the freedom to “juridify” (or not) events, decideable in elementary interaction-a freedom which increases where a “universalistic web of norms” can subsume every elementary transaction of daily life, such that it can be said of everything whether it is lawful or not (p. 124). In this context, the application of law is contingent: here, law “can make available its capacity to be cited, but it cannot, on its own, determine what decision will eventually be made” (p. 125). Secondly, law making sovereignty: law is “material upon which to work,” permitting the content of norms to be modified, changed, etc. “Our freedom to transform and reshape the law increases proportionally with the number of legal restrictions, constraints, or regulations-especially if there is a high degree of interdependence between regulations” (p. 125). And in so far as law thus becomes “dynamic” and “positive,” the content of norms again becomes contingent.

Frequent appeal to the law and a diversity of legal cases stimulate the legislature and higher courts to formulate guidelines for consistent decision-making 0ver.a wide area, such institutions becoming self-conscious (of their own premises). The more this happens, the easier it becomes to


discover legal problems in everyday life. “This routine grouping of contingent decisions into general or typical cases promotes the discreteness or relative autonomy of a special subsystem for communicating about law” (p. 126). The differentiation of input of cases and input of decision-making is the central precondition for legal autonomy.

Functional differentiation of law enables other social systems to use legal devices in a simplified form-property law as the basis for capital accumu- lation. More generally, “it ensures a degree of rationality and independence in the application of norms, and also provides legal ‘instruments’ necessary for the functional and structural differentiation of society as a whole” (p. 128). It was the prerequisite “for a high degrce of individualization in decisions having structural importance for society:’ permitting a “radical privatization” which was a precondition for a functionally differentiated society since it involved compartmentalising different functional sectors- politics, family, the economy, etc. (p. 129). All of this, suggests Luhmann, may account for the “hypostatisation” of law within classical political philosophy, and its importance in theories of “bourgeois society.”

This leaves the question whether the preeminence of law was only a condition for the transition to a functionally differentiated society, or whether it remains necessary for the continuation of a functionally differentiated society. If the latter, any decline in the preeminence and hypostatisation of law would entail dedifferentiation of society. Certainly, Luhmann suggests, modem legal systems are subject to a series of transformations and stresses, most notably, political control over introducing decision premises into the legal system, leading to or associated with consequentialism in adjudication and in doctrinal formulation of decision patterns; thirdly, loss of professional cohesion as a result of the proliferation of texts and the multiplication of reference groups with which lawyers must co-ordinate their careers.

Luhmann’s elaboration here of these strains is disappointingly cryptic (one awaits the translation of his more extensive writings on the sociology of law), but since it bears directly upon the relation between politics and law, it is worth close scrutiny. The basic problem is that “the fact that parliaments enact legislation is a constant problem for the legal system.” Two aspects of this problem are the “massive quantity and poor quality of incessantly produced legislative norms,” and secondly, the fact that ‘‘. . . political processes often react most vigorously to pictures of the real and the desirable which are . . . produced within these processes themselves.” As a result, “. . . politics is not necessarily suitable for clarifying legal problems, especially on a level where many decisions are aggregated together, or even to function there as a source for forming and stabilizing expectations” (p. 132).

At the present stage, it is impossible to say whether Luhmann’s point about “poor drafting” is trivial or integral to the problem he describes. This requires careful research into the precise character of judicial and legislative texts respectively. But perhaps more importantly, Luhmann suggests that we should see the problem in terms of the different ways in which politics and adjudication are oriented towards making selections (p. 132). In particular, we should recall Luhmann’s linkage of functional differentiation with the constitution of diverse internal versions of the entire societal system- the increasingly “specialised operational realities of, in this context, law, politics and administration.


Viewed in this way, it would become clear that the crux of the problem lies in functional differentiation it%$. In effect, what Luhmann proposes is an historical research programme which traces both the diversification of these operational realities alongside functional differentiation, and the resultant problems generated by this very diversification.ls That is, from the point of view of adjudication, legislation is a problem. Equally, adjudication can present problems for the political subsystem. This is particularly so where politics is oriented in terms of law, by means of “conditional programs.”(See below).

Modem law, according to Luhmann, is essentially positive in character. Implausibly, it is made valid by decisions (p.94). “The stability and validity of the law no longer rests upon a higher and more stable order, but . . . upon a principle of variation: it is the very alterability of law that is the foundation for its stability and its validity.” It is not then that positive law is simply a “lowest rung” residue of what is left after the death of natural law. Rather, positive law is grounded in “decision processes.” First, “decisions are made not only about actions, but also about decisions themselves.” This involves a certain division of labour, such that “each decision does not require a reprise of the previous considerations.” “Co-operative decision- making”-where some decisions serve as premises for others-is “advanta- geous, . . . even necessary, when decisions must be made in highly complex environments.” (p.95) The sources of complexity are: the large range of possibilities from which choices must be made, the unclear conditions for consensus, the need to make long term decisions without examination of all possible factors and without excluding unforeseeable but necessary changes in the future. All this requires a complex organisation for decision-making, because only thus can environmental complexity be heightened and reduced

We have already seen Luhmann argue that functional differentiation and the application of reflexive mechanisms are functionally equivalent means of coping with the internal complexity adequate to a complex external environment. So here, “Making decisions about decisions . . . is only a case of applying a much more universal structural principle.” “The normative regulation of norms” is simply a narrower case of reflexive decision-making (p.95) and is the essence of positive law: “a layer of norms addressed to the decision-making organisation” which “regulate the process of formulating norms.” Of course, “even . . . procedural norms for formulating norms can and must become part of positive law.” So-“Once the principle of variability begins to dominate the legal order . . . a guarantee for the validity of law can no longer be found in norms having an unalterable traditional or natural validity” (p.96). Reflexive decision-making requires only that procedural norms “be treated as constants in the course of the procedures they regulate.” The reflexivity of law enhances its possibilities just as “more decisions can be made when we can decide in advance what decisions will be permissible.” (p.100) In traditional legal orders, the range of possible legal decisions was severely limited. The growth of positive law “made it

(P.95).

I* In this context, the tendency in some branches of the sociology of law to treat aspects of politics and administratioe‘as well as adjudication under the general term “legal system’’ is unfortunate. Judicial and legislative processcs-or “law” and “politics”-are more diverse now than years ago. For this reason, “politicization of law” is an extremely confusing way of characterisingmodern law. Within Luhmann’s perspective, of course, what is required is a complementary inquiry into the growth of both “political science” and “legal science.’’ Some useful insights can be found in S. Collini, D. Winch and J. Burrow, Thar Noble Science of Politim (Cambridge, 1983), especially Chap. VIII.


possible to bring rapidly fluctuating situations and behaviour within the scope of the law” (p.101). Positive law is thus closely connected with the increase “in the range of possible actions among which choices can be made” (i.e. increased complexity). But the complexity of the ’system must not exceed its capacity for processing information (possible actions must be accessible in an “orderly fashion”). Hence, reflexivity.

This institutionalised variability creates serious problems of stability (in the sense of the stabilisation of selections and expectations) and generates quite new, continual problems of co-ordination. The main stabilizing forces, Luhmann suggests, are first, co-ordination effected by political processes, secondly, the fact that the complexity of the entire legal order precludes “the possibility that everything can be altered at once’l;.thirdly, the guarantee of “subjective rights” (or monetary compensation for their violation), which makes rapid legislative fluctuation (‘tolerable.” But nothing guarantees the continuity of particular values.

Luhmann argues that positive law is one of two main problem-solving institutions which function to orient political processes. The other he terms “ideology.” This involves the “evaluation of values.” If a “value” is a point of view indicating preferred consequences of action, values become ideological in Luhmann’s sense when “this selective function . . . becomes conscious and is used in turn to evaluate values. Values are then evaluated according to what specific action they select, and in this function they themselves appear to be substitutable”-which leaves no room for “abso- lute” values. An ordering of values becomes “opportunistic.” (This is important to Luhmann’s general position: just as in legal theory we must abandon the “prejudice” that “the permanent is better than what is subject to change,” so we must transcend the prejudice “that permanent values are more valuable than those which can be cited only as a temporary basis for action.” “Who can claim, unconditionally and universally, that culture is a greater value than hygiene, or freedom a greater value than peace?” (p.97))

Ideology makes possible the variability which an opportunism of values involves. How? First, ideology can direct “choice of value-programs” and regulate the “substitution” of programs (a “pragmatic” or “instrumental” function). Secondly, “it must secure the consensus of those who will have to work with their own values,” must provide “the certainty” that their “turn” will come (a “symbolic” or “expressive” function). These two functions diverge in complex systems, requiring reintegration through the symbolic structures of an ideology. “Ideology differs from rationally developed decision-programs in that it seeks to orchestrate the distribution and redistribution of benefits and burdens by appeal to a symbolic system that is both strongly expressive and open to consensus.” In other words, ideologies are symbolic structures which allow the formulation of values to become reflexive-thus permitting a higher level of complexity in decision- making.lg

As noted above, one aspect of the autonomy of systems from their environment is that a cause in the environment which affects a system does not prompt a particular, immediate .response. The system spends time selecting and manipulating the information from its environment. The selective Drocessine of this information can take the form of either “eoal

l9 Luhmann offers two examples: ‘‘Marxism,” whose open-endedness and variability ‘is ensured through continual reinterpretation by the party; and the reversal of ends and means (such that values become means to rather than ends of political power) implicity in, for example, A. Downs, An Economic Theory of Democrucy (New York, 1957).


programmes” or “conditional programmes.” Such programming can begin either with the output or the input. That is, either “a desired response can be taken as invariant and used as a rule for selecting causes that can bring it about” or “the programme holds constant a particular cause which, whenever it occurs, must trigger a particular type of action.” (p.111) In the former case, the “response” becomes a “goal”-and we have a “goal programme”; in the latter case, a “conditional programme”. Ideology in the above sense is closely linked to goal programmes, law to conditional programmes. “Ideologies usually get translated into action by means of goal-programmes that specify what goals under what circumstances can guide and justify the choice of means.” For legal regulation, conditional programmes are preferred, connecting “specific (or specifiable) legal consequences with clearly defined states of affairs; whenever such states of affairs are known to exist, correlated actions or decisions are set in motion.”

When law becomes positive and is delegated to the decision-making processes of large bureaucracies, conditional programmes can be used as a “planning technique” in two ways-to determine, in a relatively centralised way, “ifithen” correlations and by a delegation of responsibility such that whoever can show that the “if”-clause is true can activate what the “then”- clause prescribes. What counts as “consistency,” “rationality,” “mistake,” “excuse” will vary depending on whether goal or conditional programmes are used.

Luhmann uses these two types of programmes to analyse the primary problem solving or programming techniques of the political systems of East and West-the former deploying goal programmes, the latter conditional ones. Western constitutional multiparty democracies are oriented primarily towards “input” (p. 115). “Incoming information” including legal claims “has a major regulating function for the political system and bureaucracy.” This involves the risk of loss of control over what problems are posed-of “surrendering the future to the ‘chance’ of an unplanned social development, in favour of a past expressed in consolidated interests, investments, and legal claims” (p.116). This is the problem of “input overburdening.” Because there is no pre-selection of “permissible political themes,” it is “overwhelmed with a plenitude of unharmonizable demands.” What happens is that the “responsibility for a good many unanswered questions gets passed on in the form of vague or contradictory legislative programmes to the authorities actual1y.concerned with applying the law, which becomes ‘inflated’ to a level of great complexity.” Juristic techniques for solving problems become overworked. This may have advantages for the political system- depolitis- ation of politically insoluble problems, displacement of power to the courts which are “institutionally too fragmented to be consolidated into political power. It cannot be exchanged and thus accumulated. It is always limited to groups involved in specific proceedings- and they are not able to form broad’ political coalitions. It can be used only for making decisions about individual questions, whose premises are always so exactly formulated that a thoroughgoing political ideology ‘can no longer be developed from the operation of the legal system.”(p.l17)

I11 Luhmann’s discussion of modern law throws up a simple problem: “how can we trust a corpus of law that can be altered from one day to another, or an order of values that demands a continual re-ordering of relative prefer-

(P.112)


ences?” (p. 102) “Traditionally, in Europe the ultimate standards have been sought in the criteria of truth and justice.” Even today, we are tempted to use these as criteria, “to examine ideologies for their truth and positive law for its justness.” Yet ultimately, says Luhmann, to remain ‘today at this level leads, in the form of a “universal scepticism,” “to the discovery of the subjectivity of self-consciousness and of the contingency of the social world.” The complexity of social reality today makes it questionable whether a critique grounded in these concepts ‘‘is still a prescription for right thinking and right action.” (p.118). A century-old discussion about ideology and the theory of positive law, if anything, suggests the opposite. “To insist upon justice as a value when faced with positive law makes little sense if it cannot be known what precisely should be preferred and .if every attempt in this direction turns ideological.” Truth and justice “have lost their critical and innovative function,” retaining only “symbolic functions: they serve to express good intentions, to appeal to good will, to express a presupposed consensus, and to postulate the possibility of mutual understanding.?’ (p.119) “They degenerate into ciphers for indeterminate and unspecifiable complexity.” (p.120)

For Luhmann, the problems of risk of positive law can only be accom- modated, if at all, by heightened reflexivity in the political system. (pp.104-10) Once we recognise that the present level of complexity can only be maintained by reflexive mechanisms, “it becomes questionable whether the particular risks involved can be mastered through recourse to such pre- reflexive conceptions of order as natural law or eternal values. Indeed, how can conceptions of a lower and rather indeterminate complexity regulate ones of a higher and more determinate complexity?”

“In view of the wide range of actual values and norms now involved in practical decision-making, it is increasingly questionable whether principles and ultimate perspectives that can be withdrawn from all variation and relativity will indeed provide an apt instrument for stabilization and control.” (pp.102-10) If one tries to analyse thoroughly how reflexive mechanisms can function and be stabilised, thus locating the risks and problems involved, it would appear “that the dangers in positive law are no longer resolvable in strictly legal terms”20 because the root of the problem “lies precisely in the application of a mechanism to itself”-a problem which is for sociology to explore (p.103). In other words, Luhmann seems to argue that the inherent variability of positive law cannot be “controlled” or mitigated by any theory of natural law. Luhmann is quite explicit about what this entails: “We must realize that concepts such as opportunism, decision, positivity, ideology, and function . . . are precisely what can bring our thought back to the level and the systematicity of traditional European efforts to interpret political society and its legal system.” (p.119) “A high level of complexity, if it is not to remain unspecified, presupposes the construction of systems that not only recognise complexity by name, but also understand it and reduce it-that is, make it exploitable within the domain of action. This can take place through structures, subsystem-building, compartmentalization of meaning, reflexive mechanisms, communicative nets, cybernetic regulations . . . etc.” (p.120) “All of these allow actions to be effectively oriented towards a multitude of alternative possibilities.” Formal idealistic criteria of truth and justice leave our thought about complexity “altogether inferior to

2o For different perspectives on this point, see G. Teubner, “Substantive and Reflexive Elements in Modem Law” (1983) 17 Law and Society Review 239-285 and d. P. Nonet and P. Selznick, Law and Society in Transirion: Toward Responsive Law (New York, 1978).


the level of complexity already present in action-systems” (p. 120) In other words, Luhmann urges that we turn Mant against Marx: “We must always analyze society by employing the most advanced concepts and theories available at the time.” (p.343)

Although Luhmann makes no claim to have worked out a completely integrated theory, it is clear from what he has produced so far that his work involves a certain “epistemic shift” regarding how questions about decision-making, politics and law (and much else besides) should be formulated. It remains to be seen how successful, as a theoretical enterprise, the Luhmannesque problem-set will prove to be.

IV It is quite a different matter whether this enterprise is one which should be pursued. It is impossible here to address the complex interplay between “theory,” “ideology,” and one’s conceptions of likely or possible futures.21 It is no longer news to announce the value-laden character of theory (nor the under-determination of theory by the world, which is not necessarily the same thing). The problem is that what this means is itself very complicated,22 as is the question of whether these problems can be transcended at a metatheoretical or reflexive level of theorising about theorising.a

For Habermas: “Behind the attempt to justify a reduction of the complexity of the world as the highest reference point of functionalism in the social sciences hides the unavowed commitment of the theory to ways of posing the questions which conform with the structure of domination, to defending the existing state of affairs in order to keep it in existence . . . Thus the theory is reserved for technocratic use.”24 This criticism poses the question of whether we should equate limited possibilities of communication with domination. At any rate, as Claus Offe points out,” even critical or “emancipatory” theory must come to terms with the progressive uncoupling of the motivation of subjects from objectively organised functions and outcomes to which Luhmann directs his analyses.

Luhmann, in turn, has been dismissive of Habermas’s “ideal speech situation” and project of “rational reconstruction.” “I do not see how anything essential in the vital relations between men can be changed, or how men could form themselves, simply because one discusses the truth of the justification given for the importance of the ruling class or anyone else and amves at a rational consensus.”26

In this limited respect, Luhmann’s vision seems closer to Foucault than to Habermas. Foucault, too, historicised rationality, and his work seemed imdicitlv to treat Habermasian rationality as inadequate to present realities.

21 As seen above, Luhmann has suggested how multiplex “the future” has now become. 22 Whatever one makes of its conclusions, this is powerfully demonstrated by Habermas

in Knowledge and Human Interests (Eng tr., 2nd ed., London, 1978). See especially the discussion of Habermas in R. Rorty, Philosophy and Mirror of

Narure (Oxford, 1980), p. 380-384, and cf. R. J . Bernstein, Beyond Objectivism and Relativism (Oxford, 1983r, pp. 197-207.

Quoted in R. Bubner, Modern German Philosophy (Cambridge, 1981), p.213. Luhmann’s “picture,” it must be said, resembles, in significant ways, Alain Touraine’s critical sketch ,of a society of “permanent change”--see “Triumph of downfall of civil society” in Humanities in Review, Vol. 1, (Cambridge, 1982), pp.221-224. See also J. Donzelot, L’invention du social (Paris, 1984), Chap. IV. 2( C. Offe, Contradictions of rhe Welfare Stare (J. Keane, ed.) (London, 1984),

pp .Z7-258.


Both Luhmann and Foucault in their very different ways have reformulated the question of truth-and thus “logic”-as some transcendental court of appeal for arguments or justification. Habermas’s point that “irrationalism” stalks Foucault’s writings” is in effect equivalent to his description of Luhmann’s position on truth as “decisionistic.”28

In a sense, the distance between Luhmann and Habermas concerns what can be expected of social scientific theory-and whether it is possible, desirable or necessary to have a deductive axiomatic a prioristic theory. Luhmann frankly rejects the need or the possibility, at the moment at least.29 And on his self-referential treatment of truth, Luhmann acknowledges the potential instability associated with his position, but is prepared to live with it: “I solve this question for myself by saying that I’m living not in the Greek times but in our time and I submit to our present code of truth even when I’m working on theories about its development . . . Normally I accept the standard of logic and standard of empirical verification as binding but this does not prevent me from . . . seeing that these standards are themselves contingent on certain social structures and on certain historical developments. ’”

W. T. MURPHY*

THE REFORM OF CIVIL PROCEDURAL LAW AND OTHER ESSAYS IN CIVIL PROCEDURE. By SIR JACK I. H. JACOB, Q.C. [London: Sweet and Maxwell. 1982. 359 pp. f18-50.1

IT is vouchsafed to few to create and establish single-handed an entirely new yet crucial discipline in the field of legal studies. It happened however that Sir Jack Jacob’s unique combination of qualities: his extensive legal experience, acute legal mind, deep scholarship, his enthusiasm and reformist zeal united at a particularly appropriate time to enable him to launch, from the platform of University College, London, his one-man crusade for the establishment of a new university subject within the framework of legal education, namely, the principles of civil litigation. By means of his LL.M. courses in the University of London, amply supported by his extensive writings and participation in international and other conferences, Sir Jack’s influence has spread steadily over the years in both common law and civil law jurisdictions and he stands today as the acknowledged and universally acclaimed authority in every aspect of procedural law. The significance of this development can be underlined by the tendency of lawyers to concen- trate their studies mainly on substantive law, to the neglect of that area of law which is of no less importance, namely the procedural context in which the substantive law functions and has its being. By securing, as a fully established field of university teaching, study and research the subject of the principles of civil litigation Sir Jack Jacob has ensured that such neglect is hardly likely to afflict our legal system in the future and he has recently rendered the legal profession further in his debt by launching a new Civil Justice Quarterly of which happily he has also undertaken the general editorship.

~ ~~~~ ~

Quoted in Bubner, note 24, supra.

Habermas, “History and Evolution,” Telos (Spring 1979), p.24. Luhrnann, “Interview . . .” (see note 10, supra), p.40.

*’ See Angelo Bolaffi, “An interview with Jiirgen Habermas,” Telos (Spring 1979), p.170.

)’ Ibid. p.42. * Lecturer in Law, London School of Economics and Political Science.


The publication of the present volume, containing a considerable number of his important contributions to the study of civil procedural law made during the 20 years between 1960 and 1980 is particularly timely and welcome. The range of these papers is extremely wide but they are all informed with a unifying theme, which is, as the author himself points out, the need for extensive and fundamental reform in our civil procedure. Nor can Sir Jack’s fervent efforts in this direction any longer be regarded as those of an unheard voice crying in the wilderness: on the contrary, attention is increasingly being directed by those involved in law reform to the need to take a fresh look at, with a view to revision and perhaps even drastic restructuring, that system of procedure which derives from the great Victorian Judicature Acts, and which is now over a century old. There is little doubt that the publication of this collection will do much to stimulate that process.

In the course of this review it is not possible even merely to list the 15 papers the book contains, let alone to examine their contents in detail. Suffice it to say that the extensive coverage of the book can be shown by mentioning on the one hand broad surveys, such as that on “the Adminis- tration of Civil Justice,” delivered in 1980 to the Sixth Commonwealth Law Conference at Lagos, and, on the other hand, specialist topics, such as “the Inherent Jurisdiction of the Court,” and “the Present Importance of Pleadings.”

It can be said of Sir Jack Jacob as was said of Oliver Goldsmith that he writes of nothing that he does not adorn. His style is crisp, lucid and direct, yet informed with deep learning and an immense fervour that the law should be made an instrument not for satisfying the needs of lawyers but for attaining social justice. It can be stated with confidence that no lawyer however experienced and informed, can come away from the study of this volume without being refreshed and stimulated and his knowledge substan- tially increased. Perhaps his one regret will be that of the reviewer that this admirable volume lacks an index.

LLOYD OF HAMPSTEAD

LAW AND ORDER: ARGUMENTS FOR SOCIALISM. By IAN TAYLOR. [London: Macmillan. 1981. 234 pp. Hardcover: f15.00. Soft- cover: f4.95.1

FOR those students of criminology during the 1970s, like the reviewer, who discovered The New Criminology by Taylor, Walton and Young, and have awaited the development of the ideas contained in that book with some degree of interest, many are likely to be surprised by the tone and content of Professor Taylor’s book. The book title’s resemblance to Tony Benn’s recent Arguments for Socialkm is no coincidence, giving a clue to the book’s thesis. For Taylor’s treatment of the development of social policy in the post-World War I1 British welfare state, and the emergence of radical critiques of the prison system, the police, the legal system and the position of women under the law, does not take the form of a criminological treatise. Instead it is a political document, intended to fill the need (identified by Taylor) in the Labour Party for a more theoretically coherent policy on law and order issues, and to provide a blueprint for a transition from the existing state of affairs to a socialist democracy. Appearing at a moment when factionalism in the Labour Party is most evident, and at a time when Harold Wilson has described Labour’s policies as “prehistoric,” the author’s timing


is not inappropriate. However being a political document, Taylor appears more concerned with the broad strokes, and on occasion therefore may be criticised for a lack of scholarly detail.

In the chapter entitled “The Reality of Right-Wing Criminology,” Taylor makes the case, also made by others, for a correspondence between the return to political power by the Right and the return to individualistic, retributive law and order policies. This is unobjectionable. I do, however, remain sceptical as to the extent to which, as suggested by Taylor, the writings of James Q. Wilson and Patricia Morgan constitute a widely read and influential theoretical exposition of current social problems in this country, or constitutes in any sense (except the weakest) a right wing “criminology.” The influence of the largely anonymous tabloid press here is much more striking, yet it receives little attention. It is also in this chapter that Taylor clearly establishes a polemical tone for the book, resorting on occasions, somewhat disconcertingly at first, to statements made in the first person.

In Chapters 2 and 3 the book charts the demise of the 1945 social democratic vision of the British welfare state until the present, and then identifies some general changes needed in order to redirect socialist social policy in the 1980s. Criticism is made of the excessive reliance in the past upon both private and state-employed professionals, and the subsequent disillusionment with the therapeutic model, whether in the context of children, adolescents or whole families. While conceding that a need for professional assistance, policing and the containment of some offenders will remain, Taylor argues for the avoidance of the “authoritarian statism” of the post-World War I1 welfare state and for greater recognition by the institutions comprising the state of “popular needs and popular political rights.” In the final and most substantial chapter, five areas for practical involvement leading to a socialist criminology are identified: the prisons, police accountability, law and civil liberties, and the women’s movement. Here the author’s objective is considerable but there is also a tendency to gloss over and reduce to a questionable level some complex issues. Police accountability is one example. While undoubtedly the role of police committees has tended to become trivialised (if, in fact, it was ever anything else), their lack of involvement in policy matters is not simply (or clearly) the result of unfavourable legislation, but has also involved the preparedness of the committees to test their own powers. The example of the clash between Merseyside Chief Constable, Ken Oxford, and the Merseyside police committee is an example.

Nor is the lawyer’s curiosity as to questions of legal form satisfied in the calls made for the democratisation of the justice system nor as to what limits are proposed to protect against the possible tyranny of popular discourse. Recurring calls for an “authentic” and “genuinely social order,” while appealing remain essentially undeveloped, reminiscent of The New Crimi- nology. On the positive side, however, Taylor displays an admirable sensitivity to women’s issues in his discussion of legal issues affecting women, and does not romanticise about a non-existent sense of community in large sections of the working class. He also avoids the dismissive glibness of the early 1970s concerning the so-called “dark figure” and public anxiety over crime, conceding the reality of public fears and the need for women, various minority groups and others to accept (while having enhanced input into) some form of policing. In this way Taylor has sought sincerely to provide a practical, working manifesto for the Left on matters affecting law


and order. Whether he is ultimately successful in this aim remains a question for posterity.

There has been talk of a new book by Ian Taylor for some time. It is therefore unfortunate that the manuscript for the book had been substan- tially completed, except for the Introduction, prior to last summer’s distur- bances, These events, apart from providing material for the book’s front cover, gave rise to rhetorical clashes on law and order which would have provided further material for Taylor’s analysis of the issue in contemporary Britain. However, the author has provided a provocative account of post- World War I1 social policy in Britain, identifying its limitations, with a view to developing a more coherent transitional policy for the Left on law and order, to which he addresses the second half of the book. Yet, as stated earlier, it is not a thorough criminological exegesis of the issues addressed, but remains chiefly a political document directed, as the covernotes suggest, to the “transformation of our society.”

ANDREW GOLDSMITH

THE ORDERING OF JUSTICE: A STUDY OF ACCUSED PERSONS AS DEPEN- DANTS IN THE CRIMINAL PROCESS. By RICHARD V. ERICSON and PATRICIA M. BARANEK. [Toronto: University of Toronto Press. 1982. xvi and 268 pp. (incl. index). No price stated.]

THIS analysis of the experiences of defendants after their first court appear- ances forms part of an impressive series of interrelated studies concerned with the “careers” of accused persons carried out by members of the Centre of Criminology at the University of Toronto. From interviews conducted with 100 defendants (most of whom were interviewed after their first court appearance and after the final disposition of their case), Ericson and Baranek provide a vivid picture of the powerlessness and alienation which, they argue, are the lot of the vast majority of defendants in the criminal courts.

The central thesis of the book, around which the research material is organised and presented, is that, since defendants lack the necessary knowledge and ability to order their own cases, they are forced to rely upon others within the system. In this subordinate posture, they are unable to control (or even greatly to influence) the course of events which will determine the outcome of their cases in court. Defendants, the authors contend, are thrust into a position of dependence, particularly in relation to their own lawyers-hence the pun in the book’s title. The lawyer is no fearless champion, however, since the lawyers may have seriously compro- mising dealings with others within the court’s social system which can often work to the accused‘s detriment. “The system allows,” the authors write, “the accused to be provided with an advocate and then uses this advocate, trusted by both accused and prosecution, to order the accused through the court process” (p.78, authors’ own emphasis). Contrary to the view offered by many researchers over the years, defendants are not portrayed as ignorant, inarticulate or frightened. Ericson and Baranek interpret the accused’s passivity in terms of his powerlessness within “the ordering of justice” and they see the courtroom as providing merely an arena within which ritualistic confirmation of earlier private discussions takes place. This is by no means a novel thesis and has indeed been widely used by

writers in the United States and in this country in explaining plea settlement


procedures. The authors’ considerable reliance on this literature is gener- ously acknowledged throughout the book and, as an organising framework, there is no doubting its great utility to them. The authors are primarily concerned to present the defendant’s perspective and they make no apology for the highly critical view of the criminal system that such a perspective seems inevilably to produce: rather they maintain that the defendant’s view deserves as much attention as any other. Though it is only one of a number of competing perspectives, it is one that has been consistently ignored (or even vilified) over the years. It is greatly to the authors’ credit that their book is far more than a mere catalogue of complaints from those whose views are likely to be jaundiced. Indeed their perceptive analysis of the material derived from the interviews they conducted enables them to construct a trenchant and challenging critique of current practice.

It is true that many readers will take issue with the authors on various points, but it is, I think, the hallmark of well-conducted research that results are presented in such a way as to allow the reader to judge for himself whether they square with the interpretations that are offered. To take one example, I was less than satisfied with the authors’ explanation of why it is that defendants who are offered such a raw deal by the courts are apparently in the great majority of cases satisfied with their lawyers’ performance and with the outcome of their cases. This is a surprising paradox and the authors’ uncharitable interpretation that “it is a testimony to the skill of the court actors, and the structure within which they work, that they reproduce an aura of legitimacy that is usually accepted by the accused” (p.215) seemed to me not entirely convincing. The more important point, however, is that Ericson and Baranek provide throughout their book a sufficient volume of information, both quantitative and qualitative in nature, to allow the sceptical reader to make this kind of evaluation.

The book is a powerful and provocative contribution to the literature. It is well written, thoroughly researched, prodigiously documented, and the argument is both sustained and passionate. The illustrative case studies are employed expertly and sensitively. The author’s frequent references to English research material is indicative of the fact that the parallels between the experiences of defendants in Canada and in this country are all too easily drawn.

JOHN BALDWIN*

* Director, Institute of Judicial Administration, University of Birmingham.

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