COMPLEX ORGANIZATION AND NIKLAS LUHMANN'S SOCIOLOGY OF LAW

by

Wallace H. Provost Jr.

INTRODUCTION

Nlklas Luhmann's sociology of law was a description of the emergence of legal structures as the development of congruent reactions to the disappointment of norm expectations In a society of Individuals faced with an excess of possibilities, The criteria for the selection of such laws was the enhancement of norm congruency. However, in developing his Ideas Luhmann used two different approaches, that of functional systems theory, and that of cybernetic system theory. These two approaches use the same terms but with very different Import. The result was a level of equivocation that obscured the concepts he was trying to develop behind a set of apparent contradictions. In this thesis I will apply Ideas developed from the study of complex systems in a way that will clear these equivocations and as a result provide an unambiguous explication of Luhmann's theory.

First I will explain how his concepts of differentiation and self-reflexivity when they are complimented by the complex concepts of hierarchical order and constraint meet the three requirements for an evolutionary system. These requirements are a source of variety, a mechanism for selecting from among the variety, and a mechanism for fixing the choice. Next I will explain Luhmann's description of positive law as law which gains It validity from the fact that It can be changed. Then, combining his concept of congruency and a description of a complex level as the Interface between a set of serial networks and a parallel neural network, I will develop the concept of congruency communications as the criteria for the validation of the legal system.

Finally, Luhmann's sociological theory did not go beyond the level of positive law. However, since the hierarchical structure of the legal system requires a higher order level In order to achieve stability, I then turn to Ronald DworkIn and his theory of legal principles. I show that these, seen as a hierarchical control system which limits the possible range of valid law, emerge out of the failure of law to provide congruence. Principles Improve the stability of a legal system by constraining its activities to those which can achieve some sense of congruence In the society.

To begin with Luhmann's sociology assumed that human societies are both 'evolutionary' and 'contingent', that Is, they are historical structures that could have been different from what they are. Any theory of society built on this kind of assumption must begin with a concept of evolutionary change that is both historical and general. It must describe the way evolutionary structures have emerged in the past, and describe as well those properties of evolution which could have or might yet develop structures which differ from those we are familiar with. An understanding of the role that complexity plays In the emergence of social systems will show that the evolution of society Is essentially the development of successively higher levels of Complex organization as a response to increasing complexity in the environment.

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