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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.

Hierarchical Structure and Evolution
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HIERARCHICAL STRUCTURE AND EVOLUTION

Nlklas Luhmann falls directly into that category of sociologists we call "functionalists", though he prefers the term "neo-functionalist" to separate his theories from those of Talcott Parsons. Functionalist approaches to evolution theory have been particularly successful In developing historical descriptions of evolutionary systems, but have traditionally failed when it comes to generality. The reason for this lies In the limitations of the functional approach, not In the Imagination or abilities of the functionalist theorists. Nlklas Luhmann has broken with the traditional functionalist approach in a number of areas, but fundamental among them is that he rejected the concept of a function as a relationship between a problem and Its resultant solution. instead, he referedo the relationship that inheres between a problem or a number of related problems and the range of their possible solutions. This openedis approach up to an examination of the Imaginable, the unexpected, and the possible though unimagined as well as historically documented directions of evolutionary change.
However, in his attempt to accomplish this he was forced to abandon functionalism In favor of cybernetics. This led directly to a problem that Pioggl misunderstood as a contradiction in Luhmann's approach. In his introduction to Trust and PowerPioggl expressed It as the problem of complexity. In this case Luhmann's habit of constantly Insisting that the formation of social systems Is accomplished by a reduction of complexity through selection from a surplus of possibilities while at the sane time claiming that the act of formation increases complexity with the result that successful systems are so because they are able to match the complexity In their environment. Then again, he made systems islands of lower complexity in a field (environment) of higher complexity. It Is my contention that while Luhmann recognized an extremely Important property of complex systems he was not able to express it in non-contradictory terms. This was because he lacked a clear and unambiguous theory of complexity. By applying theories of complex systems developed by Herbert Simon, Howard Pattee, Robert Rosen, and others, we can dispel the dilemma In Luhmann's approach to complexity while demonstrating the value these theories have for developing understandable descriptions of social structures, that is descriptions which avoid the equivocation Luhmann's approach leads to. Luhmann's cybernetic description of complexity was essentially the same as the meaning of the term "Variety" In W. Ross Ashby's theory of "Requisite Variety." This theory stated that in order for one system to control another the controlling system must contain at least as much variety as the system being controlled. To put it in simpler terms, for any system to control another it must have a relevant response for every action that the controlled system can possibly make. If there existed a one-on-one mapping relationship between the two systems then they would essentially be parts of the same system. One system must have at least some characteristics which are not Included In the other In order for It to be a different system and this added variety must then be In the controlling system or else It would not have sufficient variety to control the other.

Complexity In these terms is the totality of the systems variety. Modern systems theories, such as operations research, cybernetics, Information theory etc. have been developed to solve problems In the control of directed, deterministic, man-made systems. While the purport of Ashby's law of requisite variety Is simply that the variety In a controlling system must be at least as great as that In the system under control, natural systems, and this is particularly true for social systems, are awash in a sea of excess variety. This, of course Is exactly the problem that Luhmann Is trying to describe. The fundamental question now becomes, how do they exist other than at the whim of their environment? The answer, however, Is not very readily apparent under mechanisms developed for simpler deterministic systems. In particular, processes cyberneticians have developed for reducing variety in order to maintain control of simple deterministic systems are not valid when the variety exceeds that which can be designed Into man-made environments,

Thus complexity, In Ashby's sense, Is an expression of the interconnections among the system's variety. The richer the pattern of Interconnections, the higher the level of complexity. Luhmann limited his use to the variety of social decisions. As he put it, "By complexity we mean the number of possibilities from which, through experience and action, we can choose--either through structural reduction or through conscious decision making". Nevertheless, dealing with complexity on terms which Ignore properties that delineate complex interconnections from masses of simple variety results in an approach which treats complexity and variety as essentially redundant terms. As an Illustration, Herbert Simon, In his parable of the ant In Sciences of the Artificial, maintained that the complexity evident In the trail of an ant crossing a wind-swept beach to his nest was a complexity In the beach, that in fact the ant as a behaving system Is quite simple. But, if we look at the beach, we do not see complexity, what we do see is a great amount of variety. For example, the ant comes upon a pebble It must go around. It might be that going clockwise Is a better choice because It leads to a smoother path. However, the ant cannot know this. Its knowledge consists simply of an unerring sense of direction toward home. Thus, It Is not aware of any relationship that might exist between the route around the pebble and further Impediments. Its choice is not complex at all, it Is a simple choice between two arbitrary directions. Of course, there are interconnections between the various obstacles that lie on the beach between the ant and its destination but these, being beyond the scope of knowledge of the ant, are Irrelevant to the problem of meaningful choice. If we want to learn how complexity plays an important role In this scenario we must have a different description, one that recognizes the unique patterns of Interconnections that exist In complex systems.

We can find this description of complexity In Simon's parable of two watchmakers in "The Architecture of Complexity." Tempus and Hora, as Simon explained, were both watchmakers whose work was prized in their community. While Tempus assembled his watches as a single assembly, Hora built his up out of many sub-assemblies. Because of their popularity both were constantly being Interrupted by phone calls. the result Is that before Tempus could complete a watch he had to put It down to answer the phone and It promptly fell apart. Hora's sub-assemblies, on the other hand, could be completed between calls and as a result the most he could lose In the case of Interruption was a tenth of a watch. Obviously Hora prospered having an ample supply of watches while Tempus failed due to a lack of complete assemblies. This supplies the underlying strata we will use to develop the mechanisms we need to clear away the ambiguities caused by Luhmann's use of both "Complexity" and "Variety" In terms which portray them In redundant roles. The parable of the watchmakers presents a special hierarchical structure In which the elements of each level are systems In their own right which are interconnected such as to emerge Into a higher level, which then becomes one element In a level above that. This is the fundamental characteristic of the structure of complex systems. We can begin here to develop a set of properties Inherent In complexity that make It an effective mechanism for the development of self-controlling systems under conditions of excess variety and consequently the underlying directive force in evolution.

Complexity and the Control of Variety
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COMPLEXITY AND THE CONTROL OF VARIETY


The hierarchical structure which made Hora successful, because he built his watches In successive subassemblies he did not lose all he had done whenever he was disturbed, is as fundamental to the evolution of the universe as for the success of Hora's business. That is, It is the most efficient way to organize any system above the simplest. But what Is not as evident Is that this same hierarchical structure is a natural mechanism for Increasing variety. There are many more possible compounds, for example, than there are elements from which the compounds are derived. In the case of the beach the complex systems Involved range from the materials on the beach to the ecological system that ultimately determines their distribution.
In addition to increasing variety, complex hierarchical structure allows Individual levels of the system to interact as though they were simple systems. The ant, for example, is a highly complex organism. But, as Simon explains, seen as a behaving organism wending its way across the beach, it is quite simple. When we analyze the problem of the ant finding his way home, we can treat it as though it was a machine with one predominant property, an instinct for knowing the direction to its nest. Each obstacle then becomes a single isolated event, a simple choice between often arbitrary outcomes. The property which allows us to consider the ant in this manner is what Simon called "near decomposability", which simply meant that each level of a complex system has a limited amount of autonomy and within those limits can be considered a simple system with only the variety faced by this level to contend with.

Luhmann frequently used the term "reduction of complexity" In his works. If we see that the mechanism he was referring to was this property of complexity of reducing the amount of variety a system is forced to contend with through hierarchical structure, we can overcome one contradiction In Luhmann's descriptions and at the same time open the door to more and deeper insights Into social structure. Luhmann does make a distinction between what he called "structured complexity", which follows the criteria I have set up here, and "unstructured complexity" which Is what I refer to as simple variety., but he does not make use of the concept In his descriptions

An example of completely unstructured complexity would be the limiting case of primeval plasma, when all possibilities are arbitrary and equal. Structured complexity comes Into being to the extent that possibilities are mutually exclusive or limiting. Problems of compatibility or coexistence arise with structured complexity. The actualizing of a particular possibility prevents that of others, but, on the other hand, permits the construction of new possibilities which the former requires as precondition.


The problem of choice, however, is as Important to Luhmann's theories as Is autonomy, but it cannot be described strictly In terms of Simon's complex hierarchical structure. This view of complex structure is seen from the Inside looking out. Robert Rosen has developed a picture of complex systems as they might be seen from the outside looking in." As he explained it, a system Is Complex If we can Interact with It at several different levels. When we analyze any complex system we use a set of measuring Instruments. Different sets of Instruments will give different partial descriptions of the system. The difference between the system as described by one set of Instruments end as it exists In reality Is called error. The descriptions given by different sets of measuring instruments he called relative descriptions. Because levels developed through such relative descriptions do not correspond to Simon's structural levels, It is not possible to obtain a complete description of a system by concatenating relative descriptions. However, because the Instruments we use are sensitive to those characteristics of the system that are relevant to our purpose, the error developed by a set of measuring instruments may not be significant when it is applied to that purpose. This means that the average person facing a sea of environmental variety can apply a number of sets of social, political, and Ideological Instruments to his understanding of his environment and thus develop a number of differing relative descriptions.

Luhmann's statement, "Complexity in this sense increases with the functional differentiation of society and the separating out of different possibilities" is intuitively contradictory. What he meant was that the development of social systems, for example legal systems, economic systems and so forth, increases the number of ways that the Individual can interact with the world. This mechanism would then meet the first requirement for evolutionary change, a source of variety. At the same time, each of these systems also provides the second requirement, a mechanism for choice. Each system chooses from among the possible interactions those which will best accomplish Its specific purpose. It can do this because through the use of each such system people analyze their environment with a different sets of measuring Instruments and thus develop different sets of relative descriptions. These relative descriptions are not treated as partial descriptions. They are considered at though they were complete descriptions of a single, or at most a small number of, heuristically determined levels of a complex system which have fuzzy boundaries. To put It another way, the demarcation that separates each level from Its environment Is a set of threshold conditions. That Is, conditions which occur when specific measuring Instruments with a specific level of magnification sense a sudden change of relevance In the properties of a continuum change at one point along that continuum. Differentiation at that point, however, increases the breadth of that threshold. Those behavior patterns that enhance the differentiation are selected from the variety of possible activities because the members of the society relate them to the success of the system. We can take this description as one of the differentiation of social structures. We can take It as well as a general description of the emergence of new permanent structures through the evolutionary process.


Self-Thematization
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SELF-THEMATIZATION

Another source of confusion in Luhmann's writing was his tendency to reify social systems. For example he used the term Self Reflexivity as the action of social systems of analyzing and subsequently optimizing their own actions. However, social systems do not have the power of self-reflection, these kinds of activities can only be accomplished by people. Whether people act to optimize the social system or not depends on how each individual member visualizes the system, Its needs, and Its function. The forces that lead to emergence and change are derived from the Judgments people make of the manner In which they believe the system accomplishes Its function as well as the means by which It meets Is own needs. This is a better description of what Luhmann calls reflexivity, or self-thematlzatlon, the reflection by the members of a social system on the structure of the system and the changes that occur In the system as a result of that reflection.
Let us ponder the implications of this situation. As I see it, a social system emerges from the patterns of interactions among individuals. The effect of the organization is to constrain the available activities to those which are most amenable to the goals of the social system. However, action by individuals is determined by their own interpretation of the system. This is developed from personal self-reflection and therefore will result in relative descriptions which include some error. For example, people recognize as good those activities preferred by the system only if they Identify them with aspects of the system which they feel augment its success. In this way, error can be derived both from the use of relative descriptions and from the Influence of one social system on another. This can cause strange Incommensurabilities to arise, for example, when a culture's ideology determines that one choice should be made while at the same time members of the society see, through reflection, that another choice is preferable. Of course, Individuals are anarchistic to a great extent and have differing ideas about what is to be considered successful. They apply different sets of criteria to the same systems. The more consistent the perceived goals of a system are to the various members, the smaller will be the variety of activities that will be available for the system in its interaction with its environment. The nature of complexity is such that it restricts the amount of variety In the environment that a given system will encounter. It should be obvious, therefore, that there is a great deal of variety existing in the environment that, in the case of environmental change, the system might unexpectedly be forced to overcome that it is not aware of. As a result, the greater the variety of activities within the system, the greater chance It has for ultimate survival.

While that may be true, if the assessments of the environment, and by Implication those activities chosen by the members of the system, are consistent, then there will be very little variety in the activities of the members. As long as the chosen sets of activities result in outcomes that the members identify with success, then the system will grow stronger and the variety will decrease. As long as the environment does not challenge that variety, the system can remain In a kind of apparent equilibrium, as have many aboriginal societies, for very long times. This, on the other hand, more often leads the system into real problems when environmental change forces the members to encounter new and novel problems because there will not be sufficient variety, meaning there will not be Included In the variety within the system a set of activities which will can successfully confront new and unforeseen events.

This is the nature of social reflexivity described without recourse to Luhmann's functional reification. We can speak of an ideal system, one which would constrain the activities of the Individuals to those which result in outcomes that are successful in terms the individuals recognize but at the same time would allow sufficient variety that, In the case of environmental change, there would be available activities that could successfully overcome unexpected problems. But we cannot instill Into this system, as Luhmann appeared to, the ability to reflect on and modify its own structure. This is a condition that is only possible when individual members of a social system reflect on and evaluate their own conceptions of the system, their roles In It, and the role the system plays in the life of each individual. Then, using these reflections, choose those activities out of the available variety that augment their own personal evaluation. It is a threshold property that involves people as individuals but does not occur until we reach that level of complexity which includes social systems. This means, for example, that both ideologies and value structures are developed out of the interactions of the individuals who make up the society. Such members may reject responsibility for them and thus be at the mercy of indiscriminate complex forces. Or, they may build into their Ideologies escape clauses such as Marx's view of history, or Smith's theory of an invisible hand, but ultimately, whether through action or inaction, they cannot evade that responsibility or they will reap the consequences of their action.

Contingency
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CONTINGENCY

If there is any one concept that separates Luhmann's work from most sociologists, It Is his dependence on the Idea of contingency. Contingency, however, is the bastard child of science, blamed on a lack of understanding, on rules operating though unknown. True contingency, as Luhmann pictured it, of scientific laws which produce state-spaces of possibilities rather than a single unequivocal and predictable outcome, is a new conception that many scientists hesitate to accept. Applying concept of complexity as the totality of possible interactions available to a system is one way of avoiding the problem because it suggests a state-space of causes with a one-on-one relationship to a state-space of effects thus saving the deterministic view that underlies the scientific paradigm. Even Luhmann's fuzzy interpretation of complexity tends to lend support to that view. However, the bulk of his work stresses what we might call true contingency, or causes which lead to a multiplicity of possible effects. If we interpret his work using a more formal meaning of complexity as a special kind of hierarchical structure with predictable properties which arise out of that structure, we find that we arrive at descriptions of social activities that mirror the kinds of activities we actually experience closer than descriptions tied to more deterministic assumptions.
In the first place a truly contingent event takes place whenever there are among the state space of possible outcomes two or more which have equal probabilities of occurring. There is no need for external force, to cause one outcome rather than another, for if only one outcome is possible then the choice can Just as well be made by pure chance. Another case is when the chance occurrence of an unrelated event modifies the probabilities such that a specific outcome Is chosen. In both of these cases we can say that an uncontrolled choice has been made. Neither case represents an example of a determined outcome since even knowing all of the relevant facts does not lead to a faithful prediction of the outcome. The chance occurrence of an unrelated event Is not a relevant fact.

The difference is a matter of control. Given a contingent event in an environment with a great deal of variety the outcome is self-controlled when the choice from among probabilities is determined by forces within the system Involved. It is an externally controlled event if the choice is determined by events external to the system. Thus in order for a system to be self controlled It must contain within Its own repertoire at least as much variety as there is in that part of the environment which it must normally face. This, of course, is a restatement of Ashby's law of requisite variety

The Reduction of Variety
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THE REDUCTION OF VARIETY

Considering these ideas, it is easy to see that the most important problem facing people In their interface with the world is excess variety, and it is easy also to see that when it is considered from the traditional point of view, it takes on an almost ominous quality. Luhmann began by considering the human social system as a world system encompassing the totality of human interaction. In this way he avoided considering society as a system because it has no boundaries. All social problems, as he saw them, are internal. They are the problems of the Individual confronted by Immense variety.
The only problem that does arise Is the relation of the world as a whole to individual identities within It, and this problem expresses itself as that of the increase in complexity in space and time, manifested as the unimaginable super-abundance of its realities and its possibilities, This inhibits successful adaptation to the world by the Individual, for, viewed from within, the world presents itself as unmanageable complexity, and it is this which constitutes the problem for systems which seek to maintain themselves in the world


We can pinpoint here the major source of confusion in Luhmann's approach to describing how man, as a social animal attempts to solve the problem of excess variety. In essence, he conflated two seemingly contradictory mechanisms so that as he popped from one to the other the reader would inevitably lose his place. These two mechanisms are the functionalist and the cybernetic approach. The functionalist sees the relationship between world end system as one of overload the cybernetics approach sees it as a problem of reducing complexity through system building.

From one angle this relationship between world and system can be seen as a problem of overload and of constantly threatened Instability. This in fact is the approach of functionalist systems theory. From the opposite perspective, the same situation appears as a 'higher' order, constructed by reducing complexity through system building, which renders the problem one of selection. This latter approach is that of cybernetic systems theory"


Up to now I have been stressing the role of complex organization in meeting both of these needs in general terms, but when we apply these came ideas to the interface between man and society we run into a major stumbling block. In each level below that of the social system the new emerging level has not only semi-autonomy, it has a physical identity of Its own. For example, once the macro-molecules that emerge into an organ within a living organism have attained their position within that organ, they have lost practically all of their freedom to constitute themselves in any other form. From then on, except for a limited freedom they might express In accomplishing the specific tasks assigned to them by their position In the organ, they are fixed once and for all into one form. The organ and its needs limit both the variety that the molecule Is capable of and the variety it is to contend with in its environment. Compte and the early sociologists tried to see society as an organic assembly, but it was a short-lived attempt. People, as the basic elements of a social system, cannot be shielded from their environment by the system because the system has no physical counterparts. Those levels above the psychological become tools of man and not masters. Walter Buckley labeled them complex adaptive systems with the capacity for morphogenesis, i.e. modifying their structure to meet the needs of their environment. Luhmann recognized this as a response to the knowledge man has of the variety confronting him

Human beings, however, and they alone, are conscious of the worlds complexity and therefore of the possibility of selecting their own environment--something which poses fundamental questions of self-preservation


This results In a process of emergence derived from the deliberate actions of men facing an environment which they know includes more possibilities than they can use, a confrontation which leads, therefore, to the necessity of active selection. In order to explain how this applies to law as a social system we need to examine Luhmann's theory of the emergence of social structures In general. In particular, so that we might understand the effect our complex approach has on his Ideas, we must understand the basic raw material out of which social systems are built. These are series of events, or Interactions that take place over time. And communications media, or interaction states which link Individuals continuously.

Considering the conditions of selection from a constantly changing environment, immediate experience, the moment-by-moment contact the Individual has with the world outside his mind, does not have sufficient permanence for the Individual to apply his reflexive powers. Fortunately, the mind develops a model of the world outside through the data these senses of Immediate experience provide". This becomes the world that the individual interacts with in a psychological as well as a social sense. The difference between interaction with this model and with experience is that experience passes through time; it is fleeting, transient. memories of sensual experience are of no value unless they are placed In a temporal context with other sensual Inputs. Thus the model of the world we build In our minds is a four dimensional model of a three dimensional world moving In time. Using such a model we can stand outside of time and review past events and future expectancies and thus develop mechanisms for choosing among possible behavioral patterns.


Psychological Time and the role of Trust and Power
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PSYCHOLOGICAL TIME AND THE ROLE OF TRUST AND POWER

As far as we are concerned the past exists as memories of what has already been processed by time; the future exists as expectations about what will occur later. In the four-dimensional world created In our mind we can place memories and expectations side-by-side and compare them. In this way even though the memories may be tainted by Imagination and reverie, we can still apply reasoning to determine the rationality of expectations, at least as they refer to our conception of the past existing In our memory.
With this in mind we can return to our discussion of Luhmann. He placed everything that we relate to temporally into two categories: states and events.

Either, that Is to say, something can be Identified as an event, which Is fixed at a point In time and which Is unrelated to any present experience--since experience, as time advances, marches on unchecked, processing the future Into the past. Or, something can be Identified as state, which persists regardless of change over points In time. Duration, In this sense Is nothing more than the past flowing away. States can only be Identified as they exist In the present


A state appears as something that extends both Into the future and the past. An event actualizes Itself In the present through the selective elimination of other possibilities, becomes a part of the past only when It can be established as a signpost superimposed on a state, and exists in the future only as an expectation. As Luhmann expressed it, every present has, as its own future, the unbounded prospects of its possibilities. The process of progressing toward the future is one of selecting new futures. Something is a state when its present future and its future present are identical. When events, that is, disjunctions between a present future and a future present, Impinge upon the model, then a conscious choice must be made. It presents a situation where the conditions in the future present are endangered by uncertainty in the present future.

The resolution of all social problems requires the concurrence of people whose mental model of the world Is unknown and Inevitably differs somewhat from that of each other. Out of this Luhmann developed a concept of trust. The kind of relations of time we have been discussing are vital to the development of trust, or as Luhmann puts It

Trust can only be secured and maintained In the present. Neither the uncertain future nor even the past can arouse trust since that which has been does not eliminate the possibility of the future discovery of alternate antecedents. The problem of trust therefore consists In the fact that the future contains far more possibilities than could ever be realized In the present and hence be transferred Into the past.


The problem of the present is mastery over events of the future. Trust helps to create a situation of lowered variety by increasing the "tolerance of uncertainty", for the reduction of problems of selection from a future that includes more possibilities than can be actualized. Of course, trust as a mechanism existing strictly in the present is essential to Luhmann's view of time as the sequential conversion of the future into the past. Time, as I have pictured it, however, is one dimension In a four dimensional representation of the three dimensional world traveling In the fourth dimension. Thus the present future Is an Important part of the present and trust as related to the immediate conception of the future present is part of the mechanism for determining the selection of future presents from the unlimited possibilities that lie in the present future. It Is one of the mechanisms which contribute to the emergence of social structures by helping to form the image of others in the model of reality that the individual carries in his mind and which is his only contact with external reality.

As with the emergence of any level In a complex system, social structures form at the interface between two networks, one, a serial network of change, Including both uncontrolled change, that is change determined by the environment and controlled change, or change determined by forces within the world model itself and the other a parallel network of communication, which occurs only in present time but links together related variety in the present". The important factor here is that in order for people to interact successfully with a world filled with excess variety they must choose from that variety a set of activities which will be mutually beneficial to each other. And, since there are many such sets, they must agree on which set they will in fact select. For this agreement there must be some kind of communication. In fact, since many of the selections are arbitrary, there must be a mechanism for inducing others to accept which of the arbitrary selections all will make. One such approach that Luhmann took was the concept of a communications media. Such media, he said, are formulated whenever the manner of one partners selection serves simultaneously as the motivating structure for the other. It serves to bind both partners who make their own selections Individually but are aware of the selections made by each other. In power as a communications media, for example, the power-holder himself must be made to exercise his power. Being the more independent party, It will often be easier for him to lie back and let things take their course.

To this extent, the Initial problem in all symbolically generalized communication media Is the same to this extent, what applies to love or truth applies to power. In each case the Influential communication relates to a partner who Is directed in the making of his selections.


A fundamental assumption of all power Is that uncertainty exists In relation to the power holder. He always has at his discretion more than one alternative. At the same time, he acts to remove uncertainty from his partner. The one subject to the power also has other alternatives. Power is greater when it can Influence action even in the face of attractive alternatives. Unlike power, coercion removes all choices from the subject bringing up another important point that Luhmann makes, "Power loses its function of bridging double contingency in the same proportion that it approaches the character of coercion."

Trust and power are two ways that the communications between members of a society merge their selection from variety. These merged selections, when they increase the likelihood that other selections will be made in line with them, tend to emerge into a level of a complex structure. The structure becomes another influence in the role of selectivity thus constraining the choices to those that tend to reinforce the structure, to give it characteristics and a purpose of its own, and to differentiate it from the rest of society.

System differentiation, as Luhmann explained, is thus: "Replication, within a system, of the difference between a system and its environment". He went on saying that In differentiated systems, we can find two environments: the external environment common to all subsystems, and the internal environment of each. Differentiation, then, is the replication of the interface between the system and Its environment In each of the subsystems. On the other hand, from our complex system, approach we can describe each subsystem as a semi-autonomous whole in itself interfacing not with the environment of the total system but with a selected portion of that environment, including such other subsystems as are appropriate by abstracting out that part of the total environment that has a meaningful effect on the subsystem. It can accomplish this because the outer environment itself is complex and it too can be related to according to semi-autonomous levels of activity.

The difference between this view and Luhmann's Is that we make the active element In every complex relation the individual. Each individual is in communication with a number of other individuals. In the four dimensional world of the mind other people exist as artificial constructions that mirror two kinds of interactions the individual has with others, the direct serial interactions with external individuals, and the impressions he gets of the world reflected in his internal models of others. The temporal effects for the two processes are quite different. The serial Interactions take place in a chronological time. There is a continuity with important or startling events marking off identifiable dates. Communications with internalized others, on the other hand, modify conceptions in the present. Changes of conceptions through serial interactions evolve slowly. In stable societies, (or for that matter in the more stable portions of any society) many generations may pass before any noticeable change takes place. Emergent change, through the parallel interaction of intra personal communication will often take place dramatically.

Positive Law
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POSITIVE LAW

Luhmann applied the term positive law to law determined by legislation and which gains its validity through the fact that it can be changed. The most Important property of this kind of law is that it results in a greater amount of freedom because rejected laws are still available for the future to overcome problems that were not expected at the time of legislation.
Positive law, although It excludes other possibilities, It does not eliminate them from the horizon of legal experience, but retains them as possible themes of legal validity and keeps them available for the case of an appropriate alteration in law appearing opportune; It Is arbitrarily determined but not arbitrarily determinable.


Traditional or natural law, on the other hand, maintains Its validity through tradition which cannot be changed, only Interpreted.

We must return to Luhmann's concept that disappointment in the case of cognitive expectations results in learning. The result of this Is that in the case of cognitive disappointment we are likely to modify either our understanding of the expectation, or the expectation itself Disappointment of normative expectations, on the other hand, results In a refusal to learn. This is the reason why Luhmann calls norms "Counter factually Stabilized Behavior Expectations." If laws are normative expectations selectively chosen through legal Institutions containing their own rules for change, that Is, if such laws are valid because they remain In spite of the fact that they are alterable, then therein must lie the third requirement for an evolutionary system, that is a mechanism for fixing the process. To understand how this mechanism works this we must leave Luhmann because his tendency to reify social systems tends to screen the role that Individuals play in this process. Because it deals with norms that are counter factually stabilized, that Is that have been chosen out of a variety of equally valid competing possibilities, the validity of a law Is never questioned. There may be questions, even very difficult ones, concerning the application of a law to a particular case, but once the problem of application is solved the invocation of the law is automatic. At the same time, disappointments of expectations emerging from the invocation of laws under difficult cases leads to incongruencies in the emotional feeling people have for laws and to the strengthening of those forces that exist within the society which pressure for legislative change. If most members of a society feel a personal responsibility for the existence of the laws of their society then and only then will the legal system respond to Incongruencies which develop from the Interaction between the law and the people subject to it. Congruency of norm evaluations is a communications media. As such it forms the communication between members of a society which emerge into a parallel neural network.

The emergence of a stable legal system can be seen as the development of stable Interactions at the Interface between this parallel neural network of norm communication and the serial change of successive interactions between people and the law. The action of members of a social system reflecting on and evaluating both their conception of the system and their role in it and then choosing activities from among the available variety those which augment their own personal evaluation is a source of gradual serial change. The communications media of congruency, being a parallel network linking many Individuals, is the mechanism which causes legal structures to change abruptly and periodically. Self-reflexivity goes on continuously affecting the threshold levels of Individuals. It is only when the communication of congruency, which is a measure of public consensus, reaches a point where the threshold levels of many people are surpassed by inputs from third parties that the pressure for sudden and dramatic changes in institutions such as law takes place.

The Effect of Power Communications
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THE EFFECT OF POWER COMMUNICATIONS

The above, of course, assumes a freedom of communications about politics, a sense of responsibility for existing legislation, and active control of the legislature by the citizens. The substitution of power for congruency communications results In two conflicting mechanisms, both attempting to develop the same normative structures. The problem is that each of these mechanisms Interacts with a different part of the environment and has different goals. As a criterion for normative choice, power communications acts by reducing the alternatives of those subject to the power in order to achieve the goals of the power holder. This reduction of choice results In the elimination of possibilities that might be required for the goals of the subject. It is a major cause of emotional trauma occurring between the legal system and the citizen because the elimination of needed opportunities enhances the effect of simple incongruence. Lack of congruence, on the other hand, means only that the members of the society hold a variety of views concerning the system. For public opinion to become roused against a legal system there must be a congruency of opinions on the incongruency of legal norms. There must be, In other words, a catastrophic change in the pattern of consensus to one which rails against the system. It is a case where the patterns of incongruency become the dominant force, possibly by being twisted out of proportion by the stress of power communications. This is why in non-democratic systems where the primary communication is power rather than congruency great disparities In congruency develop. In other words, more democratic systems change their laws more often but less dramatically than less democratic systems.
The Implications of this mechanism are broad. For example, given the dialectical opposition between variety and congruency, variations between perceived goals of a system and those coded into it by the legal system result in differences of opinion about the application of laws to difficult cases that at times tend to be drastic and irresolvable. Of course those who administer Justice and those who legislate are different people with very different outlooks on the system. In archaic societies where the chief of the tribe or the council of elders might both legislate and administer such a problem would never exist. However, archaic systems do not contain mechanisms which would maintain stability faced with the variety of problems common to a modern society. The separation of legislative and Judicial functions is an effective means for achieving stability. It is a social system which selects from a variety of possibilities that is expanded by its own structure those which successfully solve problems that are chosen by Its own differentiation. That means it creates structures of laws by choosing from a wider variety of possible laws in order to solve problems that society determines through the development of the legal system are normative.

The point I am trying to get at is that the larger and more complex a society is the greater the variety and the less likely is it that there exists any set of norms that would achieve complete congruence. Where there is a lack of consensus on the validity of a particular law, Its existence or non-existence tends to depend on the role of power communications which may either support or oppose the law. The Judiciary, on the other hand, is faced with decisions concerning issues that arise out of the vagueness that comes from laws which emerge out of compromises between competing Interests. The set of normative disappointments that the legislature faces Is a fuzzy set of all possible disappointments that the legislators consider at the time of enactment. The set of normative disappointments that the Judiciary must wrestle with emerge from the failure of the application of enacted legislation when applied to specific cases. Thus the two systems see different parts of their environment as important. The Judicial system acts to limit the range of valid law created by the legislative system in order to insure its own stability. The raw material for the legislative system Is the variety of norm possibilities and the need for congruence In norm structures. The feeling of congruency may be enhanced by belonging to a political party, a group of others who espouse similar political philosophies. The communications developed through these organizations emerge Into simplifications that can be construed to confirm the way members feel Internally even at the cost of gross distortions. This forms a kind of power communications that provides a consensus that does not really reflect the Inner feelings of the parties members but does reflect the way they will react to normative disappointments, The congruence thus attained Is stronger, though It may be less stable, than that which can be realized through Inadequate congruency communication alone.

This Is the point where Luhmann's sociology of law leaves us, yet if we follow this same trend of thought from the point of view of complexity theory, we find that the structure of the legal system must extend beyond positivity. Once again we must leave Luhmann and apply the same Ideas, this time to the thought of Ronald Dworkin to show how this thinker's Ideas compliment and In turn are reinforced by both Luhmann's ideas and our conception of complexity theory.

Judicial Review
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JUDICIAL REVIEW

When the connection is not clearly stated in the language of the law, how do we determine that a specific law pertains to a specific case? Remember, that in cases where the link is obvious through the wording of the law no problem exists. The existence of controversy about the applicability of a specific law to a specific case is an incident of incongruent communications. On the other hand, since laws must be considered only as arbitrary choices out a larger variety of possibilities, the most stable criteria for that choice must be the preservation of congruency. This problem is not necessarily the result of laws with arbitrary meanings or laws that lack sufficient reason for their existence. It arises because given any legislative intent, there are more different ways of formulating laws than there are laws that will be passed. Laws chosen by the legislature in order to overcome problems of incongruency achieve stability only through the recognition by the members of the society that they help to restore congruency. This can only be accomplished In a heterogenous society by keeping the wording sufficiently broad that it does not alienate any specific part of the society. Therefore the existence of controversy for the Judicial inevitably concerns differences of opinion concerning the applicability of a law to a specific case.
In a modern legal system hard cases typically arise, not because there Is nothing in the rule book that bears on the dispute, but because the rules that are In the book speak In an uncertain voice


Hierarchical constraint, as I have been maintaining, is the nature of all complex systems from the simplest atom to the most complex international organization for the freedom of any one level of the system to be constrained by the level above in order to achieve criteria set by the higher. The freedom of the use of combinations of letters in an alphabet, for example, is constrained by language to Increase freedom of communication. The purpose of a set of laws is to improve the freedom of interaction among members of a society. The hierarchical levels that Luhmann uses in his discussion of social systems have been mentioned before, they are roles, rules, programmes, and values.

The lowest level of the legal system, as in any social system, consists of people, acting out roles which deal with the problems of life that can be solved through the legal system. That level of a society's legal system which serves the purpose of Luhmann's level of rules is the communities laws. The purpose of a set of laws is to provide the social system with a common normative structure which, by reflecting the inner ideals that the members of the society hold, will serve to constrain the activities of the society so that It emerges Into one which the members can assimilate into their own inner worlds. If the set of norms which are established in a society are chosen from a set of possibilities by the selective exclusion of some, then the normative character of the society will be determined by that choice. An internally controlled system, as we have already seen, is one for which the choices from the horizon of possibilities are made by forces within the system. An externally controlled system is one where these same choices are dictated by forces in its environment. If members of a society In general feel that they actively participated In the selection of the normative structures then they will envision the structure as an Internally controlled system of which they are an integral part. On the other hand, if the members of a society see the normative structure as imposed on them then they will consider the structure as part of their environment.

Normative Structure
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NORMATIVE STRUCTURE

The implication of this is that there are arbitrary characteristics of the legal structure, and as a result normative characteristics of the society as a whole, which depend on which kind of system the societies members believe the normative structure has turned out to be. As we can see, this depends on how the members of the society see themselves in relationship to the creation and maintenance of their laws. This does not necessarily mean that the members of the society must actively or physically participate in the choice of norms. In a theocracy for example members of the society have no hand in the determination of the norm structure yet because they have an inner feeling that the norms chosen are those they agree with, they feel that they are part of the system. At the same time, in a democracy strong minority groups can influence legislation that will alienate the majority while bigoted majority opinions will inevitably alienate some minorities. It is also Important to realize that these images do not have to be real, they need only be the consensus of the prevailing beliefs of the society, or in extreme cases Just those members of the society who are affected.
Social systems which do not serve the society they develop within will not continue to exist. At the same time, the society as a whole emerges out of the Interaction of people who act through social systems. The purpose of a legal system, as we have gone over before, is to provide a congruence of social norms. The laws of a society make up one level of the complex legal system. A level that occurs at the interface between the serial Interactions of members playing out those roles which involve the legal system and the parallel communications media that exist between members and which is relative to legal problems, by these we mean problems relating to normative disappointments.

When we say along with Luhmann that through legal structures norms are counter factually stabilized we mean that the norms fixed by the legal system have no non-social Justification for their existence that would not be Just as applicable to norms which have not been selected. Thus the only validity that legal norms have is that they can be changed but have not been. Therefore, the only criteria an individual has for assessing the validity of a particular law is his own personal commitment to Its longevity. Such commitment is derived from the responsibility he feels for its enactment, either through his own activity or through some other who he feels speaks with a sympathetic voice and is in some responsible to him. It also depends on the faith he has that should the law prove to be detrimental to his own Inner beliefs he, through some agency he has faith in, could have it changed or restricted. Since no law could ever stand such scrutiny In more than a very limited society, all laws require some higher constraint. This must choose from among all possible Interpretations those which will result In the best consensus among those who are subject to the legal system. This level corresponds to Luhmann's level of values

The Emergence of Principles
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. THE EMERGENCE OF PRINCIPLES

There are two criteria for a level of legal activity which can Justifiably constrain the exercise of laws. One is that it must emerge out of the incongruencies that arise out of the administration of laws, and two, It must deal with the application of laws and not with their creation. In modern positive law that level is Judicial review and its mechanism is legal precedence. These limit the interpretation of laws to standards that have already been tested and determined to be acceptable. Thus every questionable interpretation of a law doesn't have to be re-fought every time it comes up. Judicial review is a higher level of the legal system constraining the administration of the laws themselves to maintain stability in the face of overwhelming varieties of legal interpretation. However, review alone is not sufficient. It deals with specific Interpretations about the ways that laws deal with specific classes of cases. Judicial review itself must be constrained by a level with even greater abstraction, one that corresponds to Luhmann's level of social values, this is the level that corresponds to Dworkin's theory of legal principles.
It might seem that as I discuss Dworkin's concept of principles there is a point of opposition between his ideas and mine. Arguing from the view of an essentially Just society, his two principles appear to derive from some natural law while analyzing the structure of legal systems from a sociological point of view I arrive at descriptions which will include his but only as one possibility out of many. But keep In mind that Dworkin has developed his principles out of a study of the way Judges in actual essentially Just societies make decisions. Part of my contention is that a society will be a Just society only if those who are responsible for enacting its laws want it to. Thus a Just society is one possible expression of normative structure which a society may choose, but need not. However, if the normative structure is seen as a complex system having the property that the higher levels emerge from and at the same time constrain the lower then it can be shown that a more just society is more likely to be more stable than one which is less Just.

In "A matter of Principle" Dworkin argues effectively that his principles actually do express the actions of Judges involved in Judicial review better than those alternatives which have been attempted by others. What I want to show is the relationship between these two principles and my theory of complex structure. Let us begin with the principles themselves.

First, any political decision must treat all citizens as equals, that is, as equally entitled to concern and respect. Second, if a political decision is taken and announced that respects equality as demanded by the first principle then a later enforcement of that decision Is not a fresh political decision that must also be equal In Its Impact In that Way.


The first principle seems to lead us Into controversy since the meaning of equality can be taken In any number of ways. For example, in one society where the majority of the people feel that a minority group within the society are incapable of deciding moral Issues on their own, making such decisions for them would be considered treating them with concern and respect. In another society this might be taken also to mean that all persons in the society must be maintained at relatively equal economic levels. These issues do not concern Dworkin because he is not developing a theory of Justice. He is concerned with the principles Judges use when they make legitimate political Judgments. That means that assuming any set of standards a society may adopt for themselves, the laws that they pass must be Judged as they apply to the citizens of the society. If they apply equally to all then they are legitimate, If not then they are Illegitimate.

Moral Harm
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MORAL HARM

The difference between Dworkin's conception of equality and others lies In his theory of moral harm. Considering the first principle he says, "It is part of the principle that no decision may deliberately impose on any citizen a much greater risk of moral harm than it imposes on any other." For example let us take the right not to be convicted if innocent. According to Dworkin, the main function of this kind of right is as an instruction to the government. However, even if government heeds the instruction yet still makes a blameless mistake we should still consider government wrong because the violation of a right constitutes a special kind of harm. It is a harm that people suffer even when the violation is accidental Dworkin summed It up in these words.
We must distinguish, that Is, between what we might call the bare harm a person suffers through punishment, whether that punishment is just or unjust,--for example, the suffering or frustration or pain or dissatisfaction of desires that he suffers Just because he loses his liberty or is beaten or is killed--and the further Injury that he might be said to suffer whenever his punishment Is unjust, just In virtue of that unjustice.


An Important point about moral harm is that it occurs even when no one is aware of it, in fact it occurs even when no one, or at least a very few care. This makes it a powerful concept. "Suppose," Dworkin argued, "we discover that some person executed for murder several decades ago was in fact innocent. We shall want to say that the world has gone worse than we thought, though we may add, if we reject the idea of moral harm, that no one suffered any harm of which we were ignorant, or was In any May worse off than we believed." Moral harm then, applies as much to situations as it does to people. Consider a society which enacts a set of laws that apply equally to all of its citizens. Some may disagree about the wisdom of those laws, but moral harm has nothing to do with the way people feel about laws, it only deals with the equality with which the rules are enacted and enforced.

This bring us to Dworkin's second principle. Dworkin amplified the concept in this way, "The second principle appeals to the fairness of abiding by open commitments fair when adopted--the fairness, for example, of abiding by the result of a coin toss when both parties reasonably agreed to the toss." For example, If we examine the deliberate conviction of someone known to be innocent from the standpoint of these two principles He see that this is a worse case of moral harm than that of a mistaken conviction. "Framing someone is a case of a fresh political decision that does not treat him as an equal as required by the first principle" This is not a case of the application of public commitments. Even if there were a public commitment to frame people who meet a specific test, this would not meet the requirements of the first principle. As Dworkin emphasized, the deliberate conviction of some one known to be innocent involves greater moral harm because it violates the equal standing of all citizens.

Legal principles emerge as a response to the failure of laws as they are written to apply directly to every case. Those that are successful at developing reactions to such disappointment that are generally accepted by the community will remain. Thus, from a study of the relatively Just societies of the United States and Britain Dworkin was able to Identify a pair of principles that he has extracted out of the more successful Judicial decisions. Their success, however, cannot be attributed to some natural or god-given concepts. They emerge naturally at the Interface between the serial network of Judicial review and the parallel network of the societies sense of justice. Cultures with very different concepts of Justice would develop different sets of principles. Thus principles are the highest level of the legal system. In other words, above that level the legal system is Just one element in a higher level system which emerges out of the interactions between it and other social systems as the cultures unique response to the universe.

The Sociology of Law
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THE SOCIOLOGY OF LAW

Let us return now to our sociological view. The normative structure of a society is hierarchical, the four levels as we have abstracted them are roles, laws, precedence, and principles. Each level constrains the freedom of the level below in order to maintain its own stability. At the same time each emerges from the activities of the level below. Unlike structures below that of the social, each level consists entirely of the actions of people and the reasons people accept for those actions. They all exist in the Inner worlds that members of the society create out of their interaction with their environment. The system of laws chooses for members of the society which of all of the possible norms that could be used will apply to their normative interaction with each other. They are counter factually stabilized because there exists no objective criteria why one set of norms should be selected rather than another that does not originate within the minds of the citizens.
The rules for the enactment and modification of laws are part of the system, thus, they tend to reflect the way members of the society view their norms. However, societies are not homogeneous, there are differing ways that Individuals interpret laws. Of course it is fortunate that this is so because otherwise in the case of an unexpected change in the kinds of problems that the individuals sense from their environment there might not be included in the variety of approaches available within the system one which would be successful in the changed environment. The system of laws exists at the interface between two different kinds of networks. The first is the serial network of individual normative disappointments. The second is a parallel neural network of congruency communications. Communications media exists wherever the manner of one partners selection serves simultaneously as the motivating structure for another. Stability is achieved when the norms communicated by the media result in input levels which exceed the threshold levels which define the norms that individuals have developed through serial interaction.

This paper Is not meant to be a treatise on a sense of justice, but a few characteristics of such a society will suffice to show that it does not have to be the only possible social arrangement. In the first place Dworkin stated that the best environment for his two principles is a majoritarian society. In such a society there need not be a sense of Justice, but, as William Nelson would concur, there is more likely to be one than in a society that is not. However, that is an act of faith. A sense of Justice is an inner conviction that exists in the mental world of the individuals in the society and not in the set of rules for deciding Issues.

On the other hand, in a society which lacks a sense of Justice that mirrors that of Dworkin, some other set of principles would be chosen by members of the society which would express their inner convictions. For example the minority governments of Ireland, Lebanon, and South Africa display a sense of Justice which assumes a class of inferior citizens. As a result the countries are constantly In turmoil. In the case of America except for the poor, or in England except in the case of Irish Catholics, Dworkin's two principles of Justice do apply. And, to the extent that they do, there is a stability in these societies.

Conclusion
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CONCLUSION

By applying theories developed out of the study of complex systems we have succeeded in showing how legal systems evolve out of the failure of simple normative systems to maintain consensus when faced with an environment rich in excess variety. We see that laws evolve from normative disappointments, precedence from the failure of laws to pertain to specific cases, and principles from the failure of precedences to discriminate clearly between law and precedence.
Thus we come to the conclusion of our look Into the evolution of legal systems. Luhmann's concepts of differentiation and self-reflexivity, complimented by the complex concepts of hierarchical order and constraint meet the three requirements for an evolutionary system; a source of variety, a mechanism for selecting from among the variety, and a mechanism for fixing the choice. Luhmann's description of positive law is law which gains it validity from the fact that it can be changed. His concept of congruency communications becomes the criteria for the validation of the legal system. Finally, principles are the highest level of the legal system. Above that level the legal system Is just one element In a higher level system which emerges out of the interactions between it and other social systems as the cultures unique response to the universe.