Legal Argumentation: An Analysis of Its Form Author(s): Niklas Luhmann Source: The Modern Law Review, Vol. 58, No.

3 (May, 1995), pp. 285-298 Published by: Wiley on behalf of the Modern Law Review Stable URL: . Accessed: 15/05/2013 10:45
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is inwhich thecase offailure form like'grounding' we haveto avoida conceptual are: theconcept whichdefine The distinctions notincluded. tautological In other thequestions. words. theory. theory subject-based ? The ModernLaw ReviewLimited1995 (MLR 58:3. ofdeciding rather forone possibility adducereasons to which endeavoured of that old scepticism a revival is not. Published by BlackwellPublishers. of Bielefeld. at grounding.2 (1) operation/observation. theconsiderations further assistancein the search for sound. MA 02142. and then in moderntimes. grounds which are not be grounded. wayofconceptualising non-teleological operational. University *Professor Teubner. ground. editedby Tim Murphyand Gunther Zur Theorie 1 See Struck. convincing engaged in argument decisions is good senseinjustifying and distinguishing No doubtthere grounds. point in handling of thosetrained of theconduct and description arguments.namelyto focuson intention 2 The solutionwhichhas become customary since in is unsatisfactory. itfrom its and free ofargumentation theconcept first therefore We must clarify an a to time move at the same This as version requires grounding. arguments.155. could have been made that decision be it cannot concerned. between successfuland unsuccessful attempts distinguish of using it as an objective intention withthe further it pointsto a 'subjective' situation. May). really disputed any to is no of it doubt nature this Given decision.We will not. of others. 'intention' towardssystems thefocusaway from That is whywe redirect criterion.Thatargument justification something of is determined in theveryconcept all whouse theterm) (as foralmost lawyers This is also thestarting no further and requires explanation. Oxford OX4 IJF and 238 Main Street.1 pointfor argument those seekto offer whichfollowhere. The same is true of non-legal Theoryof Legal Argumentation too: see Toulmin.A Argumentation juristischer (Oxford: ClarendonPress. Translated by Iain Fraser. Whatfollows than theother. (2) self-observation/observation (3) disputed/undisputed. (successfully) with a paradox: letus start cannot that disclosethefact Instead. decisionsare After where betweenmore or less convincing all.The Uses of Argument theories (Cambridge:CambridgeUniversity argumentation Press. grounds grounds observation the this will to then be The through paradox 'develop' grounds. that cannot are neededwhich that is.then.however.33 on Wed. Alexy. 285 This content downloaded from 146. USA.1977).94.MODERN LAW REVIEW Volume 58 May 1995 No. (Berlin: Dunckerand Humblot. 3 THE An Analysis of its Form Legal Argumentation: Niklas Luhmann * I oflegal with are concerned thejustification of legal argumentation Mosttheories is which for with is concerned decisions. 1989). appropriate contingent differently. Cambridge. 1958). 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . of Sociology. 108 CowleyRoad.

etc).The ModernLaw Review [Vol. We can only presumethattheydo notthinkabout it in thesetermsand thattheythink else.die stilleGewalt: Teilnehmende is also conveyedby Lautmann. The Modern Law Review Limited 1995 5 286 This content downloaded from 146.33 on Wed.The ConceptofLaw (Oxford:ClarendonPress. see Gilbert Mulkay. the specific featuresof a communication can be determined only recursivelyby referenceto prior or understood thanas a aspectof all legal practicerather particular typeof rules.2nd notof 'rules' of recognition. in particular on the institutional natureand non-substantiability of such rulesof recognition. fortunately) have it . to say. we speak of operational requirements. But it does not necessarily require requires arguments. Opening Pandora's Box: A Sociological Analysis of Scientists'Discourse (Cambridge: intoproblems of establishing themotives behind Press. of an And the context is that true/untrue.94. in otherinstancesof which good/bad). . we shall distinguish betweendecisions as to the legal positionand arguments. In otherwords. to thisway. For thecase of science. entscheidungssoziologische to themuch-discussed In contrast thesesof Hart. And we make the further assumptionthat in communicationwhich uses the systemitself. legal argumentation refineand continueits own operationsin one direction(and not the other). Decisions as to the legal of the law.concludes a contract). agentsand can makeclaimson that basis).1972).They thereby themselvesfrommere factsthatarise distinguish somehow or otherand can eitherbe legally treatedor not (eg a guest smokingin . one positionchange the situation the enactment of statutes or mightsay.since the point is to distinguish values legal/illegal. Much of whatHarthas ed.a personboards a bus and thereby individualcase which occurs. und Justiz arguments Beobachtung Analyse(Frankfurt: Athenaeum. decisions. we observe and describea piece of behaviour.3 to indicateon thebasis of groundsor of errors.etc. argumentation. autopoieticsystem.understandingby (legal) of the legal systemreactingin its an operationof self-observation argumentation of opinion as to the allocation of the code communicative contextto a difference and This is an observation. wills. To make this clear. Not all operationsof the legal system communicate The system does arguments.This already restricts communication our argumentative taking object: we are concernedonly withthe legal systemand not withanything place outside thatsystem(in mental systemsor in science. This level of decision formsthedirectly registry operational level at which the legal systemreproducesitselffromoccurrenceto occurrence.4 something All operationsof the legal system(which forus means all communications that assign themselvesto that system) have to mark the fact that they belong to it because theyreferto the distinction Merely to markthisbelonging legal/illegal.The 3 4 we shouldadd thatthisappliesbothto individual For clarification cases and to wholegroupsof cases thequestion whether rescuers act as uncommissioned (forinstance. philosophy.Seen the is within arguments point always only to secure effects is a means forthelegal system to convinceitself. and Merelyaskingthequestionmeansopeninga Pandora's box.5 observation of the distinction.moreprecisely. 'move' the legal system. This may come about through court administrative land treaties.In the case of thelegal systemit is it is codes like the code legal/illegal(just as. establishesits positionby altering it. 58 Here we opt for one side of these distinctions. acts. Such operationsassign themselvesto the legal system. What the people concernedthink about thisin theirheads is quite a different matter. through through binding effective jurists(not in every bed causes a hotelfire. 1994).politics. A good insight CambridgeUniversity . in terms of therecognitional can. not consist of argumentation alone. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . 1984). They use the symbol'valid law' and. however. thatis.Since we are concerned here with this involves difference of opinion and its resolution.155.

Only thendoes the question 'How good are the grounds?' become acute.Reflexivity in the area of basic conceptualquestions.' The main problem of the lawyers' art which must be solved before any is thusthefindingof texts. 5thed.and then. refinement and 'legal of instead matters to such as rationality.8 argumentation This itself needs legal competence and. an betweenoperation whichobservesoperation And thedistinction betweenobservation and usingdistinctions.To the takes place. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . 'Moral See also his arguments againstmoralscepticism generalisations. They appear when and only when the systemarouses itselfthrough differences of opinion as to the attribution of the code values legal or illegal. the texts do not supply an unambiguousproposal for what distinction has to be not reflectionin the strictsense. 6 ? The Modern Law Review Limited 1995 287 This content downloaded from 146.' 'the militaryare always would fullymeetthe right. therefore. Inductionand Ethical Generalization'in Goldstein (ed). 1953. example. What we have environment) of the here. deniesthatit is texts precedentdecisions in common law.' 'the Party is always right.but thisis notour problem at the moment. this competencesufficesto keep lawyers employed. butdistinction on thebasis of texts. Argumentsarise and are also operations internalto the argumentation but system. Precedent in Law whichare involved in thecase of (Oxford:ClarendonPress. the systemobserves itselfnot as a system(in an extentthatargument but as a collection of textsreferring to each other.7For the of texts thesystem within the system. This can be takenonlyas a warning whatwould happen in the legal systemwere it to allow text-free argumentation. Argumentation a mode specialised in self-observation. operation. theyare operationsof a different type.155. an argumentative here the complicated.On the basis of thesedistinctions. or othernoteworthy documentsfromlegal practice. represent indeed juristsalready call sets of such textswhich referto each othera 'system. 1974). of the factthatwe are operating/observing indication 7 Moore.TopikundJurisprudenz has been accumulating (Munich: Becle.To observe decision shouldbe made. purposes argumentation. not reconstruction in thesystem.94.May 1995] An Analysisof its Form Legal Argumentation: boundarybetweenfactsand decisions cannotbe sharplydrawn. 1987) pp 183-213. itselfin turnan observation.) II is a mode of operationof the system. because book printing 8 The factthattoday's discussionof topicsworkswitha poor historical memory a glanceat theliterature that about'invenire'to declinecan be seen from has caused thepreoccupation since Viehweg. Where.6 But this has 'o be simplified. Observation The distinction contains itself is itself and observation. we are interested in whatfunction fulfils. 'Precedent.the 'inventio'of thetopical tradition. in this formcan be takenas an operationis. All we are concerned with here is thatthe operational level of the autopoietic reproduction of the system does not consist of alone. to a large extent.' (We should stressthateach of these simplearguments concept of argumentation. and denotation system'sidentity or legal opinionsto be foundin the relevantliterature These textsmay be statutes or court decisions. is accordingly in two ways: itbothbelongs to Legal argumentation distinguished the legal systemand is distinct fromotheroperationsof thatsystem. exampleof Reality'(1982) WisconsinL Rev 1061.33 on Wed.reflexive thisdistinction We mustat least mention conceptuality underlying in two ways.' leaving simple arguments 'the upper classes are always right.but a mode of a special kind. and that is so in order to secure free space for ethical in support of thisin Moore. of course. argumentation Only this question allows us to understand why the systemis drivenat the operational level of self-observationto develop high complexity.

'? According to this. but also reference an argumentin all cases. WhyDoes Language Matterto Philosophy?(Cambridge: CambridgeUniversity 1975). of theiremployment on to controversial concentration of the on the basis indeed some circumstances preferably).thisobservationof the observationof texts. available to ensureitsown survival despiteerroneous practice. forms are distinctionswhich serve (only) to allow the of crossingthe thepossibility of one (and nottheother)side. By contrast would have us suppose.mustbe distinguished of in the case As pleasure (grounds) and displeasure(error) in single distinction.33 on Wed. it is only in the area of error-free 9 10 11 12 MacCormick. Precedentin Law justification.has sufficient arguments thatof its practitioners.what arguments 'think' they are doing.9an observation of the observationof texts.see pointis to secureor maintain of GroupConsensus:An Experimental of Edmonds. Also subsumableunderthiscould be the need of manyprofessions to workin circumstances severe uncertainty. between we thinkof the distinction In the case of errors.however. Argumentsobserve and describe legal events using of theirown. But how is this second-order observationthenoriented. of premises) destroys to the empiricalimpossibility thathelps.94. ifa textis producedin theprocess.On this.'Why Cases Have Rationesand WhatThese Are' in Goldstein (ed). using Argumentation them.' SpencerBrown's terminology of such a theory of ideas witha unitary orientation and its replacement On the outdatedness by a in see the historical withan approachwhichhighlights differentiation.''crossing.instruments schematised is observation these is observation instruments. Hacking.Law Review TheModern [Vol.1 Whatever dividingline in a further a living. correspondingly. 1987) p 155. 1969).thereis here a qualitativedualitywhichcannotbe reducedto a exchange relationship.we can denote the distinction of the theoryof 'ideas' withwhat all derivations less good) grounds. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions .'leavingitopen whether and it itself. speaks of 'second-order See Laws of Form (London: Allen and Unwin. compelling the measurement of grounds by their power of conviction. then. an observationof readers. argumentation (perhaps And this is no doubt in line withexperience: when one has to counter-argument. fortheseoperations is 'distinction.whether system typeof system we herecall theuse of forms'observation'and. there is a sort of binary coding of argumentation. argue. 'description.mentalor communicative uses forms. ) The Modern Law Review Limited 1995 13 288 This content downloaded from 146. of observation. we can follow the internalmeaning of arguments. we need notgo into the internal statesof mentalsystems. Since we are leavingout of consideration whenthe whether be necessaryor even advantageous logical errorsmay not in some circumstances consensus.Consensusmayalso obviateverification of error.The mere negationof a groundis not yet an symmetrical error.' (Oxford:ClarendonPress. through of good and bad (or With the concept of ground. We use the word 'forms' in a sense suggestedby George Spencer Brown.'Forms like groundsand errorsare. presentation theory linguistic Press. the mentalsystem.' 'indication. grounds are not somethingwhich can be found lying around somewhere and groundingis not a process of movementalong the road towards them. at 161.just as the negationof an errordoes not supply a good ground. groundspresentthemselvesanywayand it is onlytheirpositiveor negative evaluation which becomes a problem.stillbound to textsand dependenton them? First.155. of an error(whereit is logic above all The demonstration erroneousand error-free. And the function of professionalsolidaritymay then be termed 'surviving or whether theprofession makesitpossibleto survive themistakes mistakes.'Logical Errorsas a Function StudyoftheEffect of GraduateStudents' Erroneous (1964) 43 Social Forces GroupConsensusupon Logical Judgements of 33. 58 this is already to engage in second-orderobservation. a in situations and therefore. We can see thatgrounds and errorsplay a part here.12Instead. distinctions and cannotbe reducedto a These are forms which. including designation operationand going over to the otherside.'3 Consequently.

See.but not two sides of one form. of the contextof Finally. the argumentation 'issue') involved on each occasion? The law in force is presupposed in the formof texts. vol 1 (Cambridge: Cambridge University Press. . are no point.thereis a qualitative and not a onecomplementarity) duality (presumablyin the formof functional dimensionalopposition.about whichside of the distinctionis normally marked and.' has to be accepted.after ifjuristshesitate all.These general assumptions have for the most part now been abandoned.often globally termed ordered) statistically any 'foundationcrisis. axioms are now logical and the empirical certainties of a calculus thatcannotbe proved within but thecomponents thecalculus nothing itself.and the 'instantcase' (or in abstracto. Semantics. Groundsand errorsalso differ in themarking of theform. what is leftto thejurist so as to limithis except the law itself. on the basis of differing preferences.The double-sided formof 'error' (to be distinguished fromformalmistakes)makes it clear thatthe and deduction which has become customary in recent polemic against logic It is is jurisprudence exaggerated.see MacCormick.One would.' of observation!) has been developedin linguistic distinction 15 The 'marked/unmarked' (in turna form semantics: see Lyons. The instant favourof whichinterests.Markings emphasise which side deserves primaryinterest. Accordingly. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . jurists. both groundsand errorspresuppose a priorlimitation In of limitation the classical structure this involved two stages argument.16 If this rate situation.the set of texts fixed in writingcan become (almost arbitrarily) complex only if the instantcase.each forms. however. liketo know law. ( The Modern Law Review Limited 1995 289 This content downloaded from 146. Logically. law-governed(or at nature. whichmakesitcomprehensible risks'can be done in thisnew worldof 'epistemological how argumentation withadequatecertainty in quite practicalterms. Again. 1978) p 33. thought. Text and instantcase are.Legal Reasoningand Legal Theory (Oxford:ClarendonPress. accordingly. accordingly. But we have already made it clear thatthis is not so and thatthis even at the level of the self-observation of would be an oversimplification.1986) p 263. acts as 14 On this. then.14 rightto the extentthaterror-free argument does not yet supply good grounds. abandonment given.boththe longerthe starting have collapsed. Empirically. where the are to problemslie and whereconsequences forthe adducingof further arguments of the positiveside. or issue. there has been general of thenotionof an observer-independent. but it cannot be concluded thatlogic can be dispensed withas a tool for errorcontrol. and particularly. which side is normally unmarked. specifies which textsare to be adduced. Grenzwerte: Untersuchungen Interdisziplindre does notget beyondthe und Lebensmittelrechts (Diisseldorf:Werner. Ladeur himself of knowledgeand the evolutionof in transition betweenthe evolution of a kindof affinity postulate to followhim. Principles indubitablein themselves. 1977) pp 305. Normally.thisis the one which is marked.94.33 on Wed. on the model of quantum physics. And as faras freedomfromerroris concerned. of 16 This specificchange in the formof knowledgehas so farscarcelybeen noticedin the arguments Zur zum Konzeptder "Grenzwerte"im Umweltrecht. theruling theinteresting butalso p 197: 'Deductioncomes in onlyafter partof theargument. Winter zu einerRechtsfigur (ed). or the issue. 'Alternativen in und im Umweltplanungsrecht' von Normund Wissen im Polizeirecht Evolutiondes Verhaltnisses Arbeitsdes Umwelt-.311. It gives the formits be decided. settling in law.against which grounds have to be measured. This distinction in decisions about markingmay create the superficialimpressionthat it is a single dimension or opposition which is involved here.a reliance on generallyvalid assumptionsand a reliance on law itself. Erroris the name forthe negativeside of the distinction.Ladeur.May 1995] AnAnalysis LegalArgumentation: ofitsForm thatthe search forgroundsis worthwhile and onlyhere thatlasting argumentation controversiesmay arise. argumentation. has been carriedthrough.1 The groundis the marking name.155.

sidewayslooks are takenat social. where the permittedspeed of cars on roads is limited to . 19 Thus. It is itself seeking to avoid errors.The ModernLaw Review [Vol. It is itself arguing and must . the 'form' of writing betweentextand the distinction between verbal and (ie meant. 1984) p the precondition for all legal argumentation. at 746. arguments. acceptability. wherethis interpretation Stanford of interpretation is aimed at wardingoffthe of this'interpretative as 'maskedpower. We no longerlive in the world of system.Argumentation Aristotle. in the role of an 'interpretative (1982) 34 community' L Rev 739. issues. first. forinstance professional.'7 interpretation as an operation is never a mental but a communicativeaction. Rieke and Sillars. dealt withcorresponding . if and as long as these assumptionsoperate. forinstance. This is part of what is required for the self-observation of argumentative behaviour. especially when criteriaof tenable. This dependenceof legal argumentation between on textsmakes the connection interpretation and argumentation comprehensible.produce the consensual dimensionof the argumentation process. today. And thequestion then is: does it have to be this way or can other theoreticalpossibilities be conceived? III The need foran extensionof thepossibilitiesof observationforother. All this is so indisputablethat we now have new ways to reassure 17 Even thoughhere.But all argument this is true autologicallyjust because. Taken as a Scott.Please whole. They ensure thatit is the same thingwhich is being talked about. it constitutes argumentation keep in mind (the reader is being addressed) that the book is an exercise in the subject under since in it we will advance argumentsand ask you to give adherence to those investigation. see further der Gesellschaft Luhmann.19 It is forcedintoself-referential conclusions. interpretation meaning 'meaningful' meaning) .thedistinction 100 km/h). in Fiss. 18 Thatthoseinvolved have to 'think to be disputed along' is notmeant bythis. self-descriptions begin. and only because.94. This means thatit is itselfsupplying grounds(even iftheyare groundsfortheform of grounds).descriptions arises. 'Objectivity and Interpretation' say.155.To thisextent.I1l: theirprojectas follows: 'This book consistsof arguments. theoryis bound by the same instruments of observation as theobserverthatobserves it.' For thistherewould (on summary description community' bothsides of thiscontroversy) need to be morecarefully specifiedconceptualisation.let whatit establishesin therefore also apply to itself.1990) p liff.On thiscomplexquestion. say. There is scope for (and only when and insofaras textscan be interpreted differently argumentation thereforenot. 58 selectorof relevance.33 on Wed. introduce a case fora pointof view concerning and decisionmaking.cases. simplyfrom fromerroris always based groundscannotachieve theirpurposeand thatfreedom on assumptionswhose freedomfromerrorcannotbe guaranteedwithinthe same can never come to rest.structurally thefactthatwe knowtodaythatthese richer.Die Wissenschaft (Frankfurt: Suhrkamp. 'objective' interpretation are This is thecase. involved.' 290 )The Modern Law Review Limited 1995 This content downloaded from 146.But while in one still has the mental activityof a single reader in mind. controlthe self-observation It is truethata theory of argumentation then operates 'autologically' at the same level of observation.and thisis whatis meantby 'autologically' . 8 argumentation in carriedthrough texts. The law can grow and argumentation can stillbe keptup. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . 'Argumentation theory'has. guide or of theprocess of argumentation. but also interpretations Correspondingly. textform. They make sure that communication can be connectedby makingdiscrimination possible betweenwhat is relevantand what is not.withthepreparation of textswhichcan reflect. too. today at least.Argumentation and theDecision-Making Process (Glenview.

We merely need to ask explicitly with which forms (ie with which distinctions)we want to observe the arguers who. 22 23 ? The Modern Law Review Limited 1995 291 This content downloaded from 146. is oftenalso called entropy This is whyone side of the distinction Cf Lazzaro. force).They leave out the Such reactionsare as contemporary possibilitiesgeneratedby an analysis of form.20 the distinction process in so faras in so faras it produces surprises. Every repetition superfluous. in their turn. or. conceptually and. thatit represents redundancy) MIT Press.94. exclude each other. from the utilise the possibilities of second.supports form of one because These are two sides known. also structures. quite simply.on which we have already made a start.It is redundant produces information on whatis itselfin processinginformation thisis notthecase and. beyond complaintat the abandonmentof the flightinto Utopia. consequently.redundant. relativism Godel or Lyotard. axioms.grounds.or. redundancy and already at the each other same information time. Withoutredundancy. of course. But Is theultimate whatfollowsfromthisforargument? consequence thatit might just as well be given up.observe legal or withotherones. whichmeans. Entropiadella Legge (Torino: Giappidulli. for the firsttime with situationslong in consist in a system's being confronted makes information like laws in existence. and Meaning' (1989) 3 Revue Internationale 1979) and 'Noise. variety/ presume thatthis sort of second-ordercybernetics on questionsof typified by resoluteresignation mightshow ways out of a situation ultimateprinciples.Entrele Cristalet la Fumee(Paris: Seuil. to the level of third-order the concept of informational One appropriateformforthis is available through of form.May 1995] An Analysisof its Form Legal Argumentation: or positivism.etc. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . de Systemique 237. not every communication is In argumentthe point is afterall not simplyto make known the argumentation.through thisin termsof the theory using redundancy. 1985).21 But the contrary since it would notbe distinguishable The form is needed only forthe processingof information.155. at 125f: 'Redundancy the message. 20 21 of StareDecisis' (1972) 1 JLS 125.23 seen as the ongoing conversionof information Similarly with argumentation! Admittedly. to reformulate A communication between redundancy and information. instead. The question what function and to what arguments of good groundsbelongs withthe finding and whythearguerseems to be satisfied observation.' and theotherside.1972). Information. see also Atlan. This is thedistinction Shapirotakesas a basis in 'Toward a Theory of repetition or pattern into It is theintroduction is theoppositeof information. thepointis to observation and. meaning.Mass: Mechanism in MacKay. As in the essays 'CyberneticExplanation'and 'Redundancyand Coding' in Bateson. so thatone would henceforth do notmore thanexpress one's and seek to secure one's interests? preferences as theyare and meaning betweeninformation See also thedistinction (to thelatter and Meaning(Cambridge.33 on Wed.theobservation thatopposingconceptionscannotgetbeyondthe expression of either one's own dissatisfactionor a flight into Utopia. information is fromotherinformation.and third-order epistemologicalviewpoint. 1969). While the firstit in its immediateverbal order observer merely reads the text and understands observerasks how thetextis to be read and understood.thesecond-order the arguinghas it puts a stop. This means at the same time that the form separates events and for surpriseis always a qualityof events (which may. For use of the terms negentropy.withtheirforms way. Putting itanother events.22 communication To thatextent. a prioris. to whichwe shallreturn. also true: redundancy of informational redundancy accordinglydenotesa variable boundaryfixingwhat in the process of information is new and surprisingor what is non-surprising processing. Steps to an Ecology of Mind (New York: Ballantine. metarecits. mayalso be into redundancy.names like ourselves: formalconcepts like pragmatism. Complexity of whichthisdoes notapply. mutuallypresuppose would be recognisable.

Withthe increasein its decisions. 25 Shapiro's topic.This is the function known in reactivates but the grounding. one is evidently to unknown. turn to systems and replace theover-general ofinformation theory concept bythe of concept variety. Variety provides a measure of complexity.Using fairly quickly thesystem reducesitsown surprise to a tolerable amount and allows argument. or (it can only be said in English) activity smoking. In noted. redundancy referring they 24 That legislation renders the legal system chaoticis the starting pointforesp Lazzaro.the primary operations the increases the number and multifariousness of the (always variety system stateit may enterinto and thereby increasesresponsiveness to the transient) this neednotmeanadapting itself tonotions inthe environment. suchas theenactment of new or the increasein number of binding statutes and ordinances. Insteadof a self-satisfying like swimming. we must specific requirements. op cit n 21. accordingly nothing redundancy as far as additional information but but superfluities goes. theproduction offurther (ie reasoning. processing Thesemaybe external as longas there are grounds forgiving them events. 26 This formulation is takenfromShapiro. anything superfluous within thesystem.'26 The starting fortheneedis. production products) IV An observation of argument betweeninformation and using the distinction can do without togrounds In thedescription anderrors. argument against adequate of redundancy. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions .94. 58 In arguing and in thatsense to inform. reacting and in orderto characterise theserequirements. legal But events within the system also reproduceand in certain treatment. can.ibid p 131. of distinguishing and overruling also invents new ones. though circulating environment or taking overevaluations intothesystem from itsenvironment. as already thewritten form oftexts. on thebasis ofa little workoutwhatstateit is in and whatstateit is moving into. this involvescases and of the legal system.The ModernLaw Review [Vol. to practice occasionally achievea position where thesystem newinformation.' whyone also needs'rulings' or arguments on thebasis of legal or actualconsequences. chatting itinvolves a work. information added in small numbers to the streamof only as 'differences reassurances. producing reproduction from of thesystem.Thatis indispensable orjurisprudential distinctions ofproblems 'theories. This is the'autopoiesis' of thesystem. point situations create endless remain these (which endlesslychanging variety) as a reference.33 on Wed.namely the number and ofevents which setoff multifariousness information within thesystem. op cit n 20.155.25Formulated in the termsused above. butdo notsufficiently determine decisions. a currently itmust be stressed that confusion. in orderto be able to law as a consistent ofdecisional contexts in thefaceof suchgreat practise system Grounds are other than functions variety. circumstances increase thevariety of the system. Against widespread terminological it is notpraxis whichis involved herebutpoiesis.24 in precedents commonlaw. 292 ( The ModernLaw ReviewLimited1995 This content downloaded from 146. using redundancies already present. Argument overwhelmingly grounds. Whilethedifference between andenvironment system byitself exposesa system tothetemptation ofreacting to irritation andthus the byitsenvironment increasing own serves to work this and restore system's variety.

Even werethisestablishable. 28 This term of artfor'boundedrationality' Simon: see Models was. reprint Brussels. 1969. by theway. und Realfolgen:WelcheRolle konnen in derjuristischen Rechtsfolgen Folgenerwdgungen Regel-und Begriffsbildung spielen? (Freiburg: Alber. also makes possible a greaterstructural richnessof observationsand descriptions.and theconceptof inbuilt of a ruleuponitself.thatbetween assuming thatit in turnuses a distinction good and bad It can thenbe seen thatthe need grounds. Rev 193.op cit n 20. Les Loix Civiles dans leur Ordre Naturel (Paris: Coignard. namelyin the conceptof aequitas or Equity.And the pointof thisexclusion is to create freespace forthe application of a different distinction whichnotonlybringsout different but. one no longerworks withconstants but withvariables). But the conceptof a law and of cannotbe intuited from des Naturrechts them.See.May 1995] An Analysisof its Form Legal Argumentation: are not mentioned(just as in higher-order typesof calculus.or between erroneousand error-free. emphasis in original). p 131.94.'as Buhle says in theLehrbuch bindingness (G6ttingen: Rosenbusch.see also MacCormick.' 31 On the distinction betweenlegal consequencesand real consequences. always some sortof safety valve. This does not mean theuse ofjust any distinction the (like the questionwhether is male or female). It is no longerinteresting whichgroundscome to bear and which errors are made or avoided. after all. too. grounds discriminations. Here it is the specifyingof grounds.lorsqu'on en tiredes consequencescontrel'6quit6.namely. While in Kant's time it was still strictly it has denied.within a framework of broadly understood of thesovereign. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . The pointis to observe thegrounding as observation.155.and thereby present provisionsof prudence.and thenseeks.'Legal Decisions and TheirConsequences:FromDewey to Dworkin' (1983) 58 New York U L Rev 239.Domat. By a problemarises forthesystem'sredundancies wheredecisions are based contrast. 30 'The consequencesof actioncan from teachonlythepleasantnessor unpleasantness ofthe experience same to the feelings. Admittedly.There philosophically inspired was. all thatis involved is a testingof the recursivenessof the autopoieticoperations. statements which using characterise the autopoiesis of the system at this level of the observation of observers.see especiallyLiibbe-Wolff.31 Here. 1798.introduced by Herbert of Man: Social and Rational: Mathematical Essays on Rational HumanBehaviorin a Social Setting based on (London: Wiley. thatis. usingthedistinction betweenbehavioural 'Consequences' (1979) 24 Juridical consequences and legal consequences. Particularly worth reading is Rudden. p51. or class-basedinterpretation.buildingon things the formswhichare no longerarticulated. It is relatively unproblematicto determine legal consequences. 2nd ed. is. justifier . as we know. the legal positions which would obtain if the rule used to justifythe decision were to apply. This. The observationconfines itself thatsuch redundancies are soughtand employed. 1957) pp 204f and frequently. We can illustrate this withthe example of the groundingof distinctions on the basis of theirempiricalconsequences. Even in a feminist theattempt has at leastbeenmadeto reachthislevel of second-order withtheassertion that womenprefer other thanmenand thatsocial observation. fordecisions jurisdictio to strict law to be corrected because of unacceptable according consequences.which made itpossible. forexample(stillat the level of interpretation and not in the form of a queryto the sovereign). thiskindof grounding plays an important role today. itwould meanarriving origintoo makescorresponding at a level of statements of limited This versionwouldthen be important importance. 29 See Shapiro.'In consequencesas 'theeffect connection withthis. and would come intocompetition patterns focusing of professional applicantsand on indicators quality. 1697) p 19: 'Les loix naturellessont mal appliqu6es. 1981).this dictumis notnecessarily an accurateaccountof older legal practice. Undoubtedly.30 today become widespread. onlyforpersonnel withrecruitment on the individuality of policy. 0 The ModernLaw ReviewLimited1995 27 293 This content downloaded from 146.33 on Wed.27 for 'adequate' redundancies occurs behindthe search forgood or at least adequate as the 'invisible hand'29of the systemwhichgives orderto (satisficing28) grounds thesystem. a conceptof form the distinction betweensatisficing and maximising. simplyto finding the distinction between redundancy and variety.something requiredin any event.The 'art' of second-order observation consistsin leavingout something which is admittedlyimportant and indispensable.

94. To do this. identifies of thestatus (2) respectforthewishes of thechild.scope of application.1985).makingit to be treatedin special circumstances possible forsomeone who has acted lawfully as if he had acted unlawfully. 37 On this.on the weighing Handlungen(Strasbourg: 38 Peri Hermeneias(On Interpretation) (Eng tr.34 intentions of and effectwhich underlie a law. the decision is about the the employment of afterthe parents'divorce.32 Like and the legal animals. 294 The ModernLaw ReviewLimited1995 This content downloaded from 146. 35 And empiricalresearchwould no doubtverylargelysupport him in this:see Holand: 'Vom Machen und Messen von Gesetzen: Erkenntnisseaus der Forschungspraxiszur Reichweite der Gesetzesevaluation' 202.1988) pp 49-63. certain case-specifichabitshave developed in adjudicationwhichdo nothave implications beyond the instantcase. Lawyers oftenseek to cope withthese problemsof consequentialismby using formulaeof 'balancing' benefits. (3) thecognition respectforparental agreement. forexample. But these regularly correlated with futuresituations33 correlationsare. of Aristotle38 whetheras trueor untrue. 34 This is trueparticularly of environmental law.thoughstilllimited.This in turnleads to of still suitable forms. the when he thinks they are wrong or far-fetched?35 contributionof science must be assessed not as increasing certaintybut as of viewpoints thevariety by increasing increasing uncertainty. The balancing of interests is. This leads initially to an immenseincrease in the system'svariety. and at 49ff. arisingin individual cases or rules of decision. (1989) 10 Zeitschrift fir Rechtssoziologie 36 'He who relies on his right harmsno-one' [ed]. uncertainprecisely where they are supposed to be A judge will readily draw support fromthe causal scientifically guaranteed. further. In Germanlaw the rule seems to have developed.The ModernLaw Review [Vol. But whatis one to do if does not supportsuch a rule.'How theLaw Thinks:Toward a Constructivist of Law' (1989) 23 Law Epistemology and SocietyRev 727. offerlittleredundancy. that is. Perhaps. But what does he do hypotheses In the normal case. as it (that one cannot decide at presenthow the code is to be were.If.Since the decision has to be taken now.37These are cases in which strict legal/illegalcoding fails as a guide so thatescape routesmustbe found. present plants reactions' to presentoccurrenceswhich are quite systemdevelops 'anticipatory (or so it is assumed).cf Merkel.Withoutmore specific historical enquiry. 58 on what will presumablybe the case in the future. Anticipatory Systems:Philosophical.London: Heinemann. pp 341-358. applied in the future. then.33 on Wed. 32 Th6ry. 'The Interest of the Child and the Regulationof the Post-DivorceFamily' (1986) Int J the following criteria fromFrenchlegal practice:(1) Sociology of Law 14. those balancing formulae would appear to originate in decisional situations wherethepointwas to breakthrough rules of thetypequi suo iure utiturneminemlaedit36 and nonethelesscompel someone who had acted lawfullyto compensate for injuryor damage. at 52. fiirRechtssoziologie Zeitschrift 33 See Rosen.'Die Suche nachdem Kindeswohl:Ein Lehrstiick (1988) 9 Jurisprudenz' 155. Trubner.1938) IX [ed].155. Mathematicaland MethodologicalFoundations (Oxford: Pergamon.on the basis. legal liability gives thistype of case considerable. pollution Prdventive (Frankfurt: Umweltpolitik Suhrkamp. indicatorsof the future children available at custody of can be used as rules decision. see also Teubner.interests or consequences. thatthe considerations.Die Kollisionrechtmad3iger Interessen undSchadensersatzpflicht bei rechtma3iigen of interests.1895) passim. quo. On the generalissue. While even recently thebuilding of tall chimneys was to spare the environment. being recommended today we know thatit is just this thatspreadsthe On thisexample. 'Drei Idealtypen derUmweltpolitik' in Simonis(ed). 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . Today. in turn.or as legal or illegal).out of psychological childshouldremain with to whomithas developedthestronger theparent ties.see Prittwitz.a 'program' for the institution of strict overcoming paradoxes. or does so no longerwiththe former decisiveness?Cf psychology der soziologischen Limbach. such justifications move in the mediumof the merelyprobable.

guarantee corresponding of of is the informational problem problem properjustifications replacedby thesamefactual can be lookedatusinga different of redundancy.'whichis opposed to a appealed to an historical intothebalancing ofconsequences. consequences thisas thede factotendency of thelegal system. opposethe be made in terms ofa balancing ofbenefits thesis that decision must (or every legal or consequences). Butifthe redundancies.155. See also Schroder.See von Foerster. justification.39 do not but developments oppose nineteenth-century legal positivism. . itsvariety inthiswayis moving.TakingRightsSeriously(London: Duckworth. Cal: Intersystems 39 40 The Modern Law Review Limited 1995 295 This content downloaded from 146.May 1995] An Analysisof its Form Legal Argumentation: thistypeof case withan eye to once again.' prevailing forguaranteeing be askedwhether could suffice as instruments all. For the we see also remains moment. convincing may all a prioriestablished or preference that after criteria orders itis only abandoning of a decision whichcan be decisive42 theactualconsequences (heavenforbid that as an openquestion. thesamequestions remain open in observing which one encounters the systemnot fromthe viewpoint of but from that of For however it sound.43 dissolution One couldequallywell complete them itself as 'eigenvalues. types inquiry. onlyservetojustify of breachesof statutes).40 It remains to be seen whether thelegal system will interests anddo so without toconsequences. Hassemerhas but enduring 'legal culture. Above escapethegenerally consequences. Whether thelegal acceptsuchproposals regard whichremain of consequences will give viewpoints outside thebalancing system or of objectiveprinciples the formof subjectiverights is never (eg torture to be seen. permitted) positionsand controversies whichlack a clear focus.'44 thelaw needsredundancies and produces say that The previously absoluteand unconditioned wouldthusbe incorporated intothe See in particular Dworkin. Rechts des offentlichen undWerteim Recht' (1970) 95 Archiv 42 Amongmany.see Podlech. pattern position whichwill thenalso stimulate other of distinction. 'Two reasons' are bothadmissible that'goal reasons' and 'rightness 41 The information Reasons: The Core of a Theoryof CommonLaw Justification' (1978) 63 Cornell Typesof Substantive itby making itintoan asepctof butonlyintensifies L Rev 707 . 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . it must rights or in reality decisions in spectacular adequateredundancies.94. which we denythat!).41 One might also doubtwhether thefew human rightsclaimed as inviolable. at 198f.see as functioning 'withoutregard to can entirely utilitarianism. of justification. seeingthebalancing justifies comparable forfuture-anticipating conflict as a general regulation.does notofcoursesolve thisproblem. In orderto justify the use of absolutesin penal proceedings. 43 op cit n 40. im on the law of criminal procedure is Hassemer. one might cautiously generalise of interests Butthisscarcely situations.1977). to producestablevalues from thecontinuous to thecapacityof recursive 44 'Eigenvalue' refers systems to the resultof previousoperations.'RightsAgainstRisk' (1986) 86 ColumbiaL thejudge's freedom Rev 495. 1984) [ed]. Publications. in indefeasible. unlessithas arguments which system increasing or promises a prospect ofthem. legal principle of Given this increase in varietywhich resultsfrom the consideration more in it is to understand that recent easy developments legal consequences. Festschrift pp 183-204.33 on Wed. non-renounceable These have soughtsupport theory rights. 'Unverfiigbares Particularlyilluminating Werner Maihofer (Frankfurt:Klostermann. But even if one individual cases (say thejustification in practice or foresaw concluded that are to be taken intoaccount.1988) StrafprozeB'in Kaufmann (ed). p 197ff. (Seaside. redundancy. there thedirection towards a remains.Observing Systems applicationof operations 2nd ed. 'Wertungen 185.

of course. de I'etat autonome'(1989) 3 Revue Internationale de Systdmique 295.' is applicable only on the assumptionof a system. self-denying figure.since Obviously.'The Unityof the Legal System' in Teubner(ed).see Luhmann. On this. too. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . namely by the allocation of the system's operationsto systemratherthan environment. The systemoperates under normativeclosure and cognitive openness. thisis a case of the re-entry by it (in Spencer Brown's sense of the word).It cannot force. in spite of all the freedomof argumentation allow a legal norm to lose its validityjust because someone infringesit.47 We pass over all the problems arising with the application of this concept to social systemsin general and to the systemof societyin particular. the system can deal with itself. p 56f.if necessarycounterfactually. organisms. 'thatthe first the mark. At thelevel of thoseoperationswhichattribute thishappensthrough the legal validity. This is preciselywhatis brought about between self-reference and other-reference.therebybecomes an 'unmarkedstate' which is breached by every distinction is brought about and the distinction. but is.becomes identified the world only by distinguishing itselffromits environment.94. It identifiesitself with the function of keepingto normativeexpectations. The denotation of the unconditioned was. distinction between normativeand cognitive expectations.From thatpointon.48It must startfromthe law in in new situations.We lose littleif we give it up.identical.155.see. prepared to learn. in the can and must act cognitivelyand. the concept of the two-sided form can help. environment.the by the distinction . In the problem of reference.TheModern Law Review [Vol.33 on Wed. thisdistinction otherwise one could not speak of 'self-. By contrast. . theseconceptsmust. thus avoiding the confusionof words with thingsor of maps withterritory. Autopoietic Law: A New Approachto Law and Society(Berlin: de Gruyter.What matters here is how the legal systemdistinguishes self-reference and other-reference. If the with self-observation and it cannot denote system begins self-description. anything but itselfin distinction to the environment.It is produced by the operation of the system.. betweenconceptsand interests. observerare not only interchangeable.. in reference to mentalsystems or their 'Les conditions formelles Miermont.and the distinction.' and ' the level of argumentation. ibid p 76. re-entered into imaginaryspace as 're-entry' withitself.' thetextends. but. revise expectations where fact-finding is concerned. 58 recursionsof the legal systemand its history. On this.. be detached 45 46 47 48 See op cit n 10.. arbitrary V When the unconditionedfails and 'ultimate grounds' refuse their services. 1988) pp 12-35. we distinguish between 'self-reference' and 'other-reference. a paradoxical.of course. Here. This difference in formbetween normativeself-reference and cognitiveotherto the distinction referenceseems to correspond. and yet be able to resistthe use of combinations.'46 For systems theprimary distinction is thedistinction betweensystem and theory. if necessary. The world . ) The ModernLaw ReviewLimited1995 296 This content downloaded from 146.45In Spencer Brown's calculus of form. 69ff. vis-d-vis the environment. a vacuum arises which must not remain unoccupied. But what could replace it? Here. this figureis used to deliver the calculus itselffromthe arbitrariness of the initial decision. 'We see now.' Looked at more of a distinction intowhatis distinguished closely.

52 merely systemperceives observationsare also operationsinternalto the legal systemitself. and study experience legislator getsit. withthenecessity therefore findsitselffaced.Politicsand thePublic oftheHistory Interest in the SeventeenthCentury (London: Routledge. argumentation in which it refersto factsof the environment. particularly are subjectivefacts. one has to have. there is no metarule for 'balancing interests. The latter. in new typesof decisional situations. separatesand combinesthemat itsoperationallevel of self-reference In its concepts it preserves successful redundancies. of interests the definition through regulatehow much varietyit can accommodate and process. but in thisconnectionis guided by whatthe ordain what interests as theirinterests. on preciselythataccount theyare focused preciselyon this: while interests defineshis interests. in what in consistent. in a slogan from theDuc de Rohan.namelyto condensed In handlinglegal concepts. is paid to how thesubjecthimself calculable as long as attention Cf.thelegal systemrefers its own of and established distinctions practice. As we have seen. ibid p 113: 'If you ask how he (thejudge) is to know 52 Withalmosttouching openness.' see Heck.uniform judicial knowledgeof the world diagnoses as 'interest.the search fora golden mean and so on. Luhmann.May 1995] An Analysisof its Form Legal Argumentation: and Interessenbetween Begriffsjurisprudenz fromthat unfortunate controversy the rise of antiled to of the which at the start century jurisprudenz49 in legal dogmatics.'The former. we know (or at least could know) thatthis formalism and thatthereis no longer much was based on several historicalmisjudgments point in such pledges of allegiance to one or otherof these schools. at the same time. by contrast.51To be sure. Gunn.Throughthereference experiences The legal systemdoes not to environment. See also Cardozo. 1969). and interests. from here.justice as the avoidance of extremes.I can only answerthathe mustget his knowledge just as the outweighs from lifeitself. Gesetzesauslegung 51 On the 'Interest und Interessenjurisprudenz (Tiibingen:Mohr. administration predictable. fiirNeuere Rechtsgeschichte Zeitschrift in maintaining an orderthathas once come intoforce.'conceptualjurisprudence'and 'interest but is. The Nature of the JudicialProcess (New Haven: Yale University Press. and and other-reference.So interested parties themselvesformulate to both concepts by always proceedingwitha sensitivity Legal argumentation. Today.'it will be possible to find between muchof thejudge's own conceptualbaggage.'Sociologistswill in brief."'InterestWill Not Lie": A Seventeenth-Century apparently deriving PoliticalMaxim' (1968) 29 Journal ofIdeas 551.'unless one wishes to have recourse to the old definitionof moderation. be able to make theirown presumptions ( The ModernLaw ReviewLimited1995 297 This content downloaded from 146. tradition. to itself. when one interest another.If insteadone startsby and selfand conceptsin termsof thesystem'sother-reference interests contrasting 49 by the exemplified jurisprudence. See also Gunn.33 on Wed. 1921) p 112. which are not controlledby the legal system.155. rootedin a different exemplified by Jhering philosophical and legal realism withAnglo-American similarities and differences sharescorresponding pragmatism led]. us that other-referential But this reminds as interests.and can enter only in thatway.94.the systemcan. it refers the to interests.The reference are assumedto have an interest interested partiesin thelegal system'senvironment of justice. 1914) p 180. Accordingly. in discontinuity and (where of ensuring. legal positivism. And theneed to distinguish whichdeserveprotection and thosewhichdo not. The principleacts as a medium for the reception of all possible preferences. of withAnglo-American has some affinity workof Puchteand Windscheid. and reflection. 'Interesse und im Spannungsfeldvon Gesetzgebung und Rechtsprechung'(1990) 12 Interessenjurisprudenz 1. in the sphereof economicsand politics. continuity on in a form which can take out new distinctions of needed) conceptual pointing . in the conceptual sphere.Cardozo writes. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions .combinedwiththeneed interests of what the legal leads to considerableprestructuring to 'balance' such interests. course. 50 The earlymoderncareer of interest semantics. Literally.even wherethe to interests is formally an other-reference quality.value shifts and ideologies. and Ehrlich.

itat can be derived reference. reliability bring it may therefore be presumed thata system whichargueswithan viewpoint. 15 May 2013 10:45:55 AM All use subject to JSTOR Terms and Conditions . unbalancing valuesmust andjusticewith it. to the on thesystem's stillless as a deplorable surrender restriction autonomy. lies inthe less a 'political'one than one which which arisesis. 58 then whileno rulesforbalancing from thiseither.C The ModernLaw ReviewLimited1995 This content downloaded from 146. Just theopposite maybe truein thecase of pressure whichtendsto disadvantage well-meant social legislation and adjudication large them with their economic and interests. however. of powerful social interests. Froma sociological consistency.33 on Wed. problem of will a culture of how the react to such argument system's autopoiesis question at theexpenseof redundancy.we can consider pattern uponthe for between and Where much room is allowed relationship redundancy variety. the impactof theconcept/interest Finally. to increase and to thetendency variety 298 .The organisations. This need not be seen as a environment.The ModernLaw Review [Vol.155. will interest-orientation increase and therefore variety irritability by the explicit withcorresponding internal costs.94. is leastbecomesclearhow strongly whatis perceived andbalanced as an interest oftheconceptual ofeffects ofthedecisions restricted mediation byconsiderations within thesystem. to marginalise legally. interest an in of favour and variety against redundancy balancing.