The Unity of The Legal System

The Unity of the Legal System
NIKLAS LUHMANN
Bielefeld
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I.
Whenever the word "system" is used, the unity of the system is usually
tacitly assumed. An older epistemological tradition defined a system ex-
plicitly as a construction from a principle. 1 Neo-Kantianism in particular
took up this idea and developed it further, defining it as the appropriate
way of ordering legality of objects which lay claim not to empirical existence
but to validity (see for example Liebert, 1920: 108 ff.). Jurisprudence has
remained true to this interpretation, though the unity of knowledge has
now been replaced by the unity of state and nation. 2 Coing for example
writes that "by a system we mean the ordering of knowledge (!) according
to a uniform perspective" (1956: 26). Insofar as the science of law regards
itself not simply as jurisprudence but as the particular science of valid
objects, it seems an obvious step to combine this claim with the theory of
validity and thus to adopt the neo-Kantian definition of system. But, as
jurists realize perfectly well there is no equivalent for this in the actuality
of the practice of law. 3 In system-theoretical research it is not even men-
1
In this context, unity was often understood as "purpose", as in the Critique of Practical
Reason. In Grimm's Dictionary (1942: col. 1433) both these elements are included in
the definition: "a meaningfully structured whole, the parts of which are connected
for a purpose or are ordered together under a higher principle, an idea or a law".
But Schleiermacher's interpretation differed considerably from this definition, particu-
larly — and characteristically — with reference to the problem of contingency. "The
purpose moves further away from the idea [i. e., the inner unity of the work, N. L.]
the more arbitrary its production is" (Schleiermacher, 1977: 175).
2
Cf. Engisch (1936). This position is by no means as extreme and as isolated as it may
appear in a political analysis after the event. The interpretation of the legal order as
an institution (Dürkheim, Duguit, Santi Romano) also attributed its unity to the
extra-legal fact of society, and in German sociology after 1933 the concept of society
was simply replaced by that of Volk (people, nation).
3
Accordingly the idea of unity plays a less important part in more recent publications
on legal theory, where greater stress is laid on the method and technique of systematiza-
Copyright 1988. De Gruyter.
tion. Cf. for example Pawlowski (1981: 220ff.); Krawietz (1981: 2 9 9 - 3 3 5 ) .
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The Unity of the Legal System 13
tioned. The unity of the system is simply assumed and no thought is given
to the question of how the system acquires this unity.
This is an unsatisfactory state of affairs. It seems to lead to a situation
where sociologists leave it to jurists and jurists leave it to sociologists to
formulate theories on the unity of law. Jurists basically content themselves
with considerations of consistency, i. e., interpret unity as (relative) inter-
dependence of decisions. Unity is posited to the extent that a change in
legal practice would involve too many other changes to remain practicable.
The sociology of law is interested only in correlations between legal and
extra-legal variables and, though it may talk of a legal system, it never
clearly perceives the unity of this system.4 Thus many relevant and widely
discussed problems remain unclarified: for example the problems of the
demarcation (or fusion?) of law and politics, of the implications of social
engineering in law, of the relevance of result orientation or of that new
critique of law which argues that there is too much law.
These new theoretical approaches as well as the traditional approaches
are hampered by the fact that no clear concept of the unity of law exists,
indeed that one cannot be sure that this is a conceptual problem at all, or
to what extent it is one. Nor is it certain that there is one (and only one)
concept which could express the unity of an object. Systems theory is
certainly not necessarily the only way of tackling the question of the unity
of law. But as no other methods can be seriously contemplated at the
moment, we will work on the assumption that the unity of law must be
realized and we will therefore examine how the unity of the legal system
is to be interpreted.
II.
New departures in systems theory have sought an answer to precisely this
problem. In this connection they use the idea of self-reference or ideas
derived from it. What is proposed amounts in fact to a theory of self-
referential systems. Here the traditional linking of the idea of self-reference
to consciousness as the basis of operation is abandoned. Thus the theory
of the subject-ness of consciousness (in the sense of subiectum, hypokeimenon)
and with it the primacy of the epistemological difference between subject
and object are rejected. Instead, two kinds of operations are distinguished,
i. e., self-reproduction and observation. Observation in this context may
mean both self-observation and observation of others.
If one connects this still embryonic theoretical development with the
old question of unity in multiplicity (to which the theory of the transcenden-
tality of consciousness sought a possible answer) then one can define self-
4 See for example Friedman (1975); Aubert (1983: 28). Aubert explicitly states that a
concept of law and a precise determination of the limits of the legal system are of no
sociological interest.
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14 Niklas Luhmann
referential systems as systems which themselves produce as unity everything

which they use as unity. The resultant widening of the theoretical frame-
work is underlined by the fact that both "produce" and "unity" have
manifold meanings. "Produce" has very different meanings depending on
whether it refers to chemical, organic, conscious, or communicative pro-
cesses (i.e., chemical, organic, mental or social systems). 5 "Unity" means
not only unity of the system itself but also and above all: unity of the final
elements of which the system consists and unity of the processes into which
the operations of this system combine these elements.
The innovative aspect of this theory is the extension of the concept of
unity to cover the constitution of the elements of which the system consists.
This theoretical advance is underlined by the increasing use of the term
"autopoietic" systems, "autopoiesis" being a term originally coined by
Maturana (see Maturana, 1982). It is no longer merely a matter of "exist-
ence" or "preservation of existence" 6 nor merely of problems of self-
organization which relate only to the structural level. 7 It is a question of
the elements of which the system consists. The crucial insight is that
elements presuppose enormous complexity in terms of their energy/matter
basis but nonetheless function within systems as indissoluble units in terms
of the respective system — for example as molecules, cells, ideas, actions.
The indissoluble unity of an element for the system can be constituted only
by the system; it follows from its capacity to associate which is produced
within the system. An autopoietic system therefore constitutes the elements
of which it consists through the elements of which it consists. In doing so
it sets limits which do not exist in the substructure complexity of the
environment of the system. 8
5
The extensibility of the theory of self-referential systems beyond this overall area is
a matter of controversy. Whereas it was traditionally limited to consciousness, the
tendency today is to limit it to living systems (or even only to cells in their genetic
context). See for example Varela (1979; 1981: 3 6 - 4 9 ) .
6
Nor is it an extension of the irreducible doubling of self-preservation and self-
consciousness — which Henrich regards as the basic structure of modern philosophy.
See Henrich (1976: 9 7 - 1 4 3 , especially llOff.).
7
On this discussion, which as started in the 1950s and 1960s by speculations on self-
programming by computers, cf. Yovits and Cameron (1960); Yovits, Jacobi, and
Goldstein (1962); von Foerster and Zopf (1962). Even in contemporary literature,
self-reference is still seen largely in terms of self-organization. A representative work
in this respect is Jansch (1980). Self-organization, however, always means the capacity
of systems to change their o w n structures on the basis of their o w n experience with
their environment.
8
Accordingly, Maturana formulates as follows: "We maintain that there are systems
that are defined as unities as networks of productions of components that: (1)
recursively, through their interactions, generate and realize the networks that produces
them; and (2) constitute, in the space in which they exist, the boundaries of this
network as components that participate in the realization of the network" (Maturana,
1981: 21). However, the formulation does not clarify what I am primarily concerned
with in the text above: the production of the unity of the element.
In the sphere of action systems, Parsons explicitly queried the constitution

of the "unit act" but perceived only two possible answers, one subjective-
voluntaristic, the other cognitive-analytical (1937: 43 ff.). The more evident
it became in the development of the theory that the personal system can
only contribute one component to action, the greater was the compulsion
to adopt a "purely analytical" theory of the system of action. The decompo-
sition of action and the conception of the emergent unity of action based
on it was an act which could only be performed by an outside observer
(analyst). This theory, with its unclarified epistemological foundations, thus
amounted to a kind of "arranged marriage" between analysis and reality.
It is precisely at this point that the theory of self-referential systems moves
into a new and different starting position. Even a system of action consists
only of elements which are formed by the operations of the elements of
the system itself. It therefore cannot, as Parsons pointed out, decompose
its elements itself. But (in contrast to Parsons' position) there is no point
in entrusting this task to an analyst because in each decomposition of the
elements he would fail to realize that the system produces and reproduces
itself.9
In contrast to some previous attempts to introduce the idea of autopoiesis
into the sphere of sociology, we regard autopoiesis not only as a new
explanation of the individuality of organic systems or systems of conscious-
ness (cf. Hejl, 1982a; 1982b: 45-88). 1 0 If this were the case, the concept
would contribute little to the analysis of social systems. In fact, social
systems can themselves be regarded as special kinds of autopoietic systems.
Only thus can one arrive at an explanation of the unity of a social system
(in this case the legal system) by the autopoiesis of the unity of precisely
this system.
Perhaps the most important result of this movement towards a theory
of self-referential systems is a new conception of the closed nature of
these systems. This closure does not, however, mean the absence of an
environment nor does it mean complete determination by itself.11 Rather,
closure consists in the fact that all operations always reproduce the system.
For sense-systems this can also be expressed as follows: the system, with
every operation, controls its own possibilities of negation and thus performs
precisely what Heinz von Foerster describes as computation of computa-
9
It is obvious that here not only analytical reductionism but every reduction of self-
referential systems to another level of reality is rejected. Ergo: no reduction of
consciousness to life, no reduction of life to chemical processes, etc.
10
Dias' attempt to apply the idea of autopoiesis to the judicial decision-making process
presupposes its subjective bases and treats the legal system only as a "consensual
domain" of subjective will-formation but not as an autopoietic system in its o w n
right (Dias, 1980: 2 5 7 - 8 2 ) .
11
The older system-theoretical tradition was always based solely on this interpretation.
See Hall and Fagen (1956: 25 ff.).
16 Niklas Luhmann
tion. 12 In other words, the system must have at its disposal the code
difference between "yes" and "no", and must always be able to re-negate
the constantly concomitant, constantly implied negations. The law-code of
legal and illegal is merely an application of this very general principle and
juristic reality is nothing but the correlate of a self-referential mode of
operation which reproduces itself according to this code.
III.
What, then, is this elemental unity, this "unit act", this non-decomposable
quasi-atom the production of which — in a closed, recursive procedure —
constitutes the legal system? In a theory of autopoietic systems in which
the unity of the system is simply the recursive closure of the production
of the elements of the system by the elements of the system, everything
depends on the answer to this question.
However, we cannot immediately give an unequivocal answer but must
first introduce a clarifying distinction; namely, a distinction between commu-
nication and action and, correspondingly, between reproduction and self-observa-
tion] self-description of the system. The reason for this difficulty lies in the
general theory of social systems (cf. Luhmann, 1982: 366 — 79). Social
systems can only reproduce themselves by (always self-referential) commu-
nication. It is only by means of understanding (i. e., through a "second
mind") that a communication system reproduces itself. Here, because it is
a question of the openness of the situation for acceptance or rejection, the
smallest still negatable sense unit functions as an element. But at the same
time this process necessitates a reduction to action, which determines who
can continue to communicate with whom. 13 A powerfully simplifying self-
observation or self-description of the system by itself must therefore be
introduced into the self-reproducing social system in order that sufficiently
simplified connections (partners, subjects, information, communications,
and in all these respects, the corresponding omissions) for the formation
of further elements can be pinpointed sufficiently rapidly. This is, as stated,
the necessity of constant self-continuation. Without it the system would
simply cease to exist.
12 Or simply as "computation". See von Foerster (1973: 35—46). Reality according to

this view is simply that which makes this process — as self-restriction — possible.
13 The argument is neither logically nor theoretically completely persuasive. As always
with function data, other, functionally equivalent reductions cannot be ruled out. But
reduction to action has become so widespread and prevalent that even sociology
scarcely perceives this as a problem but interprets social systems simply as systems of
action. Frequently the error is made — a fatally obvious linguistic error — of
interpreting communication simply as a kind of action and thereby including communi-
cation in a general theory of action. See for example Moles and Rohmer (1977: 15 ff.).
If one interprets the legal system as a social system, one finds the same
relations here. Law exists only as communication (or, in psychological
terms, as the prospect of communication). Communication here means a
synthesis of information, communication and comprehension, and not
merely the action of communication as such. The differentiating-out of law
therefore lies first of all in the thematic control of communicative processes.
Every meaning, even the meaning of purely factual events, can become
legally relevant, i. e., can enter into the self-reproduction of the legal system.
The practice of jurisprudence calls for knowledge of the world. But within
this sphere of relevance there exists the core of legally valid action which
changes the legal position, engenders legal consequences, and thereby
makes possible new normative expectations which would not have acquired
a legal quality without this action of engendering. The legal system itself
determines what kind of events have this effect. It is impossible to identify
these events without a knowledge of the legal system. The constitution of
these elements is an autonomous achievement of the legal system which
occurs in the process of self-observation and self-description of this system.
The related dogmatic questions of a juristic theory of action, of problems
of omission, attribution, etc., cannot be dealt with here. We wish only to
propose the argument that the differentiation of the legal system requires
the universalization of possible relevances and it also requires that the
system describe itself as an action system. 14 The main theoretical conse-
quence of this is that events can only maintain the quality of elementary
unity of the legal system when they change the legal position. The reason
for the attribution of unity is that through it the difference between
continuity and discontinuity can be operationalized and it is therefore
normally possible to determine easily and rapidly enough what has and
what has not changed as a result of a certain legal action.
The function of formation of unity — always presupposing differentia-
tion — lies in the autopoiesis of the system, i. e., as in all systems in the
both continuing and discontinuing production of ever new elements. 15
This means that the self-reproduction of law takes the form of change of
law, of the transference of the quality of normative validity to partially
new expectations. Law, therefore, finds itself in constant trivial variation,
14 Particularly interesting in this context are the threshold cases of birth, giving birth,
and death, which, although they change the legal position, can neither be understood
as legal acts nor do they owe their relevance to other acts. It could be said that they
owe their legal relevance to a decision by the legislator. (Note the formulation of
Para. 1 of the German Civil Code (BGB) which is concerned only with dating.) The
option of interpreting law as the codification of over-positive human rights is at least
left open.
15 Analyses which concentrate radically on the temporal dimension are rare not only in
legal-theoretical but also in sociological literature. However, one example of such an
approach is 0sterberg (1976, especially 64 ff.).
18 Niklas L u h m a n n
and the proven major forms such as the contract and the statute are merely
differentiated forms of this state. The positivity of law is its autopoiesis
and, precisely because of this, divergent reproduction is possible — whether
in the form of almost imperceptible evolution or in the form of planned
structural change. Structural changes, therefore, do not require any special
"legitimating" principle, ius eminent or super-norm. They are in any event
only possible in law.
IV.
The new perspective in the theory of self-referential systems changes the
starting point from which sociology must examine the relationship between
society and law. The binding power of law is not merely a symbolic
expression of society as a social fact. The unity of law cannot in this direct
manner be explained in terms of the unity of society, and normative validity
certainly cannot be explained in terms of an evaluated and assessed social
fact. On the contrary, when one enquires into the autopoiesis of the
comprehensive social system of society, one first encounters a fundamental
problem, and only when this has been solved can the question of the unity
of the legal system be answered.
The social system consists of meaningful communications — only of
communications, and of all communications. It forms its elementary units
from the synthesis of information, communication, comprehension, i. e.,
from the synthesis of three selections, which can be partially (but only
partially) controlled by the system. As such element formation always
presupposes society and always continues society, there is no communica-
tion outside society and therefore no communication of society with
its environment. No man can communicate (in the sense of achieving
communication) without thereby constituting society, but the social system
itself (precisely for this reason!) is not capable of communication: it can
find no addressees outside itself to which it could communicate anything.
To this extent, society is an autopoietic system in the strict sense of the
thoery of self-referential systems. It possesses its own unity as autopoiesis
and only as autopoiesis. In this respect it is a recursively closed system, which
can neither derive its operations from its environment nor pass them on
to that environment. It cannot communicate with the environment but it
can and must necessarily communicate about the environment. Granted,
communication always implies communication about communication and
reproduces itself by this means, but it cannot communicate only about
communication.
This is a very clear, very unequivocal state of affairs, which does not pose
any fundamental difficulties in the concept of unity or in the demarcation of
system from environment. All social systems which form within society
are therefore bound to form their final elements as communications. The

legal system, too, consists only of communicative actions which engender
legal consequences — it does not, for example, consist of physical events
nor of isolated individual behavior which no one sees or hears. It consists
solely of the thematization of these and other events in a communication
which treats them as legally relevant and thereby assigns itself to the legal
system.
The problem is that no other social system, no partial system which
forms within society can also be a unity in this sense, as typology of
operation and therefore as communication. For in all other social systems
there is communication within the intra-social environment and possibly
also communication with the respective environments. All partial systems
execute and reproduce society insofar as they are communicative systems —
and it is only this that makes them social systems. This alone does not
confer on them either unity or self-referential self-containedness, for these
attainments are for them only reached through their differentiation from
an intra-social environment which also communicates. Mere participation
in the autopoiesis of society does not in itself make the partial systems
autopoietic systems, nor does it make them masters of their own unity.
According to the theory of self-referential systems, "unity" is a non-
transferable quality. We are therefore confronted with the questions of if
and how a partial system of society, in this case the legal system, can
nevertheless organize its own recursive closure. Or in other words how,
while participating in social communication, it can still find its own mode
of forming basic elements for which there are no equivalents in the partial
system environment.
V.
The example of the legal system illustrates how the problem of differentia-
tion is solved in social systems — of course no direct conclusions can be
drawn from this about other kinds of systems. The clarification of this
problem is a step forward in two areas, namely in the theory of the legal
system and also in the more general theory of social differentiation. The
differentiation of a legal system is fundamentally based on the distinguish-
ability of normative and cognitive expectations. The solution of the prob-
lem lies in the utilization of this difference with an orientation towards the
function of law (see Section VII, infra. For a detailed treatment see also
Luhmann, 1985).
Expectations are fixed as normative if when these expectations are created
it is decided that they do not need to be changed in the event of being
disappointed. The opposite is true of cognitive expectations. It is therefore
a matter of the difference between not learning and learning in still
20 Niklas Luhmann
uncertain future situations, of the advance choice of strategy, of the

absorption of uncertainty. This contingent relation, i. e., the function which
determines the normative or cognitive nature of the expectation, is then
removed in the determination of meaning and is expressed only in the
quality of the expectation. Its quality of expectation or of knowledge
depends on the form of uncertainty absorption on which it is based. In
any event this is an artificial difference which certainly does not have to
apply to all behavioral expectations but is only used when an advance
determination of the strategy of dealing with disappointment in the commu-
nication context of society is required.
Legal systems use this difference to combine the closure of recursive
self-production and the openness of their relation to the environment. In
other words law is a normatively closed but cognitively open system. 16
The autopoiesis of the legal system is normatively closed in that only the
legal system can bestow legally normative quality on its elements and
thereby constitute them as elements. Normativity has no purpose beyond
this (in the sense of an intendible end). Its function is continuous making
possible of self, from moment to moment, from event to event, from case
to case and it is designed precisely to have no end. The system therefore
reproduces its elements by its elements by transferring this quality of
meaning from moment to moment and thereby always providing new
elements with normative validity. In this respect it is closed to the environ-
ment. This means that no legally relevant event can derive its normativity
from the environment of the system. In this respect it remains dependent
on the self-generating connection of legal elements and on the limits of
this connection.
At the same time, and precisely in relation to this closure the legal
system is a cognitively open system. In each of its elements and in their
constant reproduction it is dependent on being able to determine whether
certain conditions have been met or not. By programming it makes itself
dependent on facts and it can also change its programs when the pressure
of facts dictates this. Every operation in law, every juristic processing of
information therefore uses normative and cognitive orientations simultane-
ously — simultaneously and necessarily linked but not having the same
function. The norm quality serves the autopoiesis of the system, its self-
continuation in difference to the environment. The cognitive quality serves
the coordination of this process with the system's environment. 17 If the
16 Formulations of this kind in systems theory can be traced back to the famous definition
of a cybernetic system by Ashby (1956: 4). Ashby defined such a system as one "open
to energy but closed to information and control".
17 It may be useful for purposes of clarification to examine a parallel case. The economic
system is also differentiated as an autopoietic system. It ties all operations to payments
and is, in monetary terms, a closed system. Outside the economy there are no
cooperation of (normative) closure and (cognitive) openness is a condition

of constant self-reproduction and if this in turn is nothing but the unity
of the system, "self-reference" can never be total self-determination nor
can it ever be total (or even adequate) self-observation. It is always only
concomitant self-reference, and is to a certain extent the relation of unity
which makes possible the self-realization of unity. It is not a "grounding"
principle or a regulative idea and it is certainly not an all-justifying meta-
norm. If one compares theories here, it is clear that "concomitant self-
reference" occupies the space which a theological construction of the world
assigned to creatio continua, a space which transcendental theory called on
certain privileged facts of consciousness to fill. But the theoretical proposal
outlined here eschews any kind of asymmetrical superposition of that
concomitant principle. 18 Our primary concern here is with the fundamental
asymmetry without which recursive (i. e., symmetric) autopoiesis cannot
form systems.
Autopoietic processes are recursive, i. e., necessarily symmetrically struc-
tured — and this is an aspect of this theoretical approach which has significant
and wide-ranging implications for legal theory. The norm quality of each
element is owed to the norm quality of other elements, to which the same
rule applies. There can therefore be no norm hierarchies. 19 In terms of norma-
tivity a strict symmetry exists even between the law and the judge's decision.
Laws are only regarded as norms because they are intended to be used in
decisions, just as these decisions can only function as norms because this is
provided for in laws. In terms of normativity, the relationship between the
rule and its application is circular (cf. Eckhoff and Sundby, 1975: 123 — 51
[The authors equate this circularity with cybernetic feedback, a view I do not
share]; Eckhoff, 1978: 41—51).20 Autopoiesis operates beyond the sphere of
payments, not even as input or output of the economy. Payments serve the exclusive
purpose of making other payments possible, i. e., they serve the autopoiesis of the
system. But precisely this closure is also the basis of the wide-ranging openness of
the system, because every payment requires a motive which is ultimately related to
the satisfaction of a demand. Cf. also Luhmann (1983: 153).
18 The tradition is, however, indicated by the use of the word "concomitant".
19 The same applies — here, too, in contrast to current theoretical ideas — to the
autopoiesis of the life of organic systems. Cf. Roth (1981: 1 0 6 - 1 2 0 ; 1982: 3 7 - 4 8 ) .
20 Less radical is the theory (first formulated by Adolf Merkl and Hans Merkl) of the
graduated structure of the legal order. It states that at every stage the creation and
the application of law are in a hybrid relation to each other and that only this hybrid
relation is graduated. Cf. Ohlinger (1975, especially 10 f., 38 f.). This is how one has
to think if one wishes to construct a hierarchy with more than two levels. (This is
the same problem with clean/unclean in the Indian caste system.) It would be taking
one step beyond this to interpret the relation of the creation/the application of law
as circular at every level, i. e., as self-referential. Then graduated structure would be
a decomposition and hierarchization of the fundamental self-reference of the system.
22 Niklas Luhmann
deduction and beyond the sphere of causality. 21 Thus there is no attribution of

norms to final principles or authorities in which normativity and cognitivity,
validity and being fuse. 22 Normativity as a clinging to expectations despite
disappointments is always and everywhere the same.
Even Hart's theory of law (1961) has to come to terms with these
presuppositions. On a superficial view this theory constitutes the unity of
law as a self-compensatory relation. A layer of primary rules, because of
their immanent weaknesses (uncertainty, static character, inefficiency), has
to be complemented by a layer of secondary rules. But in legal operations
the interrelationship of these two spheres can only be recognized and only
be practiced if the same norm quality is involved in both spheres. Otherwise
compensation for the inadequacies of law would lie outside the law (which
is of course possible).
Of course there are also asymmetries in the legal system. No system can
get by without them, for this would mean existing as pure tautology in total
indeterminability. However, all asymmetries must be introduced into the legal system
via cognitive orientations, and they thus articulate willingness to learn. The judge
is only cognitively, not normatively, dependent on the law: 23 he must find
out whether a law has been passed or not, he can err in this respect, in which
case he has to correct his error. In principle, the same applies to asymmetries
on an equal level in the time dimension: if a judge wishes to make his decision
dependent on other decisions, then he must include these decisions as a fact
requiring recognition in his information processing method. The medium of
normativity in which the system reproduces itself is structured in this manner.
But this always presupposes the basic circularity which differentiates the sys-
tem and compels it into autonomy.
The theory of the closed and thereby open system makes it possible to
grasp the function of formality in law and to see this in connection with
the peculiar susceptibility to disturbance of law on the symbolic level.
21 Von Foerster would say it operates on the level of a second order cybernetics, on
which the reference to reality is replaced by recursivity. This concept is expanded in
von Foerster (1974: 2 7 - 4 6 ; also 1979: 5 - 8 ) .
22 The semantics of central fusion have indisputably dominated the tradition of legal theory
to such an extent that it has even been proposed to introduce the basic norm as an
epistemological hypothesis. From the perspective of the sociology of knowledge, this
type of internal semantics of the legal system demonstrates the difficulty of conceptually
realizing the complete differentiation of the legal system. In terms of the history of ideas,
all central fusion would appear to be secularizations of the idea of God.
23 Perhaps a further elucidation is useful here. Of course, the judge is the addressee of
the normative expectations of the legislator. However, this is a completely different
problem. The judge is also the addressee of the normative expectations of the public,
of the litigants, of his colleagues, etc. The fulfillment of the normative expectations
of another does not mean subordination nor does it guarantee the quality of generating
or regenerating of normativity in one's decisions. According to the theory proposed
here; this can only occur by means of recursive reference reproduction of elements by
means of elements.
Legal forms are valid because they are valid. They are formal precisely
by virtue of the fact that they contain their justification within themselves.
They serve as symbols of the circular self-reference of the system. The use
of form should not be confused either with logical deduction or with
conditional programming, because forms are tautologically valid, whereas
deduction and conditioning are built precisely on asymmetries. Like the
metaphor or the joke, the form functions only when it remains unques-
tioned. The use of form occurs when it is insisted that valid rules should
be applied, that legally valid sentences should be carried out — because
otherwise the legal order itself would be called into question. Forms are
carried out in a ritualistic manner. Here references to the world are
eliminated and replaced by references to the system itself — a typical
characteristic of rituals. 24 Forms are therefore all the more susceptible to
every kind of symbolic breakdown — and one form of breakdown is that
these forms are no longer believed in. 25
This is why no developed legal system can rely entirely on forms. Self-
reference is not only practised simply as self-reference. Its symbolization
through forms is transformed into a simultaneous practice of self-reference
and external reference. This does not mean that forms become superfluous
but they can now be related to the fact that the connection between closure
and openness must be guaranteed. This is ultimately why formalism in law
is equated with conditioning and logical schematization. However, further
analyses are required to make this clear.
VI.
Our provisional answer to the question of the unity of the legal system is:
autopoietic reproduction of elements by elements on the basis of circular,
recursive normativity. Like every good theory, of course this raises more
questions than it answers.
Our first task is to arrive at a more precise idea of how the continuous
simultaneous processing of normative and cognitive aspects of meaning is
achieved as a system. For this there are two different mechanisms which
operate in conjunction with one another, namely conditioning and binary
schematization.
Conditioning is a quite general technique of forming systems without
which no complex systems could develop at all (cf. Ashby, 1962: 109). For
24
Cf. the widespread interpretation of ritual as a restricted code — for example in
Wallace (I960, especially 233 ff.); Rappaport (1971b: 2 3 - 4 4 ; 1971a: 5 9 - 7 6 ) ; Bloch
(1974: 5 5 - 8 1 ) .
25
This statement can also be reversed, which leads to the Romantic idea of form.
Romanticism forces itself through doubt to form.
24 Niklas Luhmann
if systems exceed a certain minimum size yet are to be kept mobile, logically
possible connections of elements must be inhibited and at the same time
kept available under certain conditions. In the legal system such condition-
ings are deployed with the additional, special function of combining closure
and openness, normative and cognitive expectation. They thereby play an
indispensable part in the differentiation of the system. Whether the condi-
tions which confer normative quality to a result or a relation are present is
something which can and must be ascertained from a cognitive perspective.
Paragraph 1 of the German Civil Code, for example, states that a person's
legal capacity begins at birth. This condition has to be examined cognitively:
that which is not born does not possess legal capacity. Any attempt to
introduce a normative expectation here — for example that a person ought
to be born — would throw the entire conceptual system on which legal
decisions are based into confusion.
This is why the structure of the legal system — insofar as it takes the
form of decision-making programs — consists of conditional programs
(Luhmann, 1985), which establish an "if a/then b" relation between the
conditions (which have to be cognitively ascertained) and the conferment
of norm quality. Although it is logically conceivable that validity could be
made dependent on future events and therefore left uncertain in the present,
such a conditioning of success is incompatible with the orientation function
of expectation generalizations. Purposive programs as a means of transfer
of norm quality are excluded — if not logically then by the function of law. 26
They would destabilize and particularize law to an intolerable extent. 27
Any purpose orientation of the state must always lay claim to political
instruments, i.e., to the power to make collectively binding decisions. 28
26 The discussion of this issue is riddled with misunderstandings. In particular, a vital

distinction is not always grasped. Of course, conditional programs can be built into
purposive programs as sub-routines: one has to meet the requirements for obtaining
a driving license before being allowed to drive. And these requirements are so selected
as to ensure that only those capable of driving actually drive. Nonetheless, the fact
that some people who are incapable of driving do actually drive does not make the
law on driving licenses invalid; and a person's driving license does not become invalid
because the holder is not in a position to buy a car. The non-achievement of a purpose
has no legal consequences.
27 With characteristic indecisiveness Unger (1976: 86) concedes that modern jurisprud-
ence has "increasingly accepted the notion that the meaning of a rule, and hence the
scope of a right, must be determined by a decision about how best to achieve the
purposes attributed to the rule. But all such purposive judgments are inherently
particularistic and unstable; the most effective means to any given and varies from
situation to situation and the purposes themselves are likely to be complex and
shifting" (Unger, 1976: 86). See also the following discussion on the deformation of
law by the welfare state (Unger, 1976: 194 ff.).
28 This does not conflict with the rule (in constitutional law) that all administration is
tied to law, but it obliges lawyers constantly to consider what minimum amount of
T h e Unity o f the Legal System 25
The legal system itself — and this applies equally to public and to private
law — can react to the peremptory demand for consequence orientations
only by an internal differentiation between doctrine or interpretation and
validity. Interpretation can afford to risk the uncertainties of a glance at
the future and can operate with extremely simple causal assumptions. But
it must then in its results make clear, purpose-free statements of validity.
This technique of juristic conditioning can be applied occasionally when-
ever problems requiring regulation arise. It becomes universalized and
therefore compelled when the legal system is encoded through the binary
schematism of legal/illegal. This codification leads to a doubling of norma-
tive expectation quality into a positive and a negative value. Then it can
(and must) be determined in principle for all events and states about which
communication occurs in the legal system, in what conditions they are to
be treated as legal or as illegal. In this connection a technicization of this
schematism develops, in the sense that the two code values are reversible
by mere negation. This excludes the possibility of anything being simultane-
ously legal and illegal 29 and also of law being interpreted as a weapon by
parties with different chances of winning or of losing. For operative
purposes, differentiation is oriented not simply towards the function of
law but towards the antithesis between legal/illegal. 30 The legal system
must accordingly be understood as the unity of legality and of illegality,
or more precisely as the control by this antithesis of its autopoiesis with
the result that every operation of the system must be conditioned by the
system itself.
The legal/illegal codification cannot be understood if the function of
law is regarded as being solely to resolve conflicts. On the contrary, the
severity of the win or lose principle often makes the settlement of a dispute
more difficult. Or else it merely forms the menacing background against
which negotiations on an amicable agreement take place. In the allocation
of action to the category of legal or illegal there is always an element of
the reproduction of the legal system, a kind of "surplus value" which is
conditional p r o g r a m m i n g must be demanded as a condition o f the legality of political-

administrative purposive action. Cf. Ohlinger (1982: 17—49). T h e United States
also appears to be wrestling with the problem of increasing legal " e n c h a i n i n g " o f
administration and increasing resistance to this problem.
29 The Greek tragedies illustrate that this maxim was not generally accepted in antiquity.
Cf. Wolf (1950 to 1956). O n e may even assume that the development o f law was one
of the starting points for the development o f the Sophistic technique o f the forcing
of antithetical decisions which in each case led to different consequences. Cf. L l o y d
(1966, especially 111 ff.). It may also have led to the development o f logic based on
ontology.
30 See Plato's Lysis, 215 E , for the metaphor of the love and desire o f the antithesis for
one another.
26 Niklas Luhmann
skimmed off for the benefit of the system and which, it may be said, results
from the quarrelsomeness of litigants.
We cannot at this stage deal with the consequences which result when
structural decisions about conditioning and binary schematization are intro-
duced. It must suffice here to point out that important groundwork has
been done and points of contact have been established for detailed legal-
theoretical development. This has been achieved not by a leading idea of
law such as justice or social order, which would only be more or less
imperfectly realized in this way. The reasons lie in the conditions of the
possibility of attaining closure and openness at the same time, of combining
them and thus of bringing the specific area of functioning of law to a level
of high, socially adequate complexity. Ultimately it is always a matter of
reformulations of system unity — reformulations by which structural
restrictions of correspondingly attainable complexity are accepted and built
into the system.
VII.
The unity of a self-referential system can only be realized as one which

determines, and is determined by, itself. Indeterminacy in that which
belongs to a system always means incomplete differentiation, or in other
words dependence on an overall social basis of operation which is not
ordered as the difference between partial system and environment.
Our reflections so far have outlined the problems which arise and have
to be solved if a social sub-system in society attempts to attain a distinct
unity. It must then itself combine closure and openness, i. e., reproduce its
unity itself and constantly expose this process to the difference that exists
between itself and the social environment. This may come about because
the system fulfils a specific function which is not performed anywhere else
in society. As a result it becomes possible for the system to treat everything
else (however important this may be in itself for society) as environment.
It is a matter of controversy whether a general evolutionary trend towards
functional specification can be assumed and how such a trend could be
explained. 31 At any rate such a tendency, if it prevails, creates optimal
conditions for autopoietic autonomy of social sub-systems because the sub-
systems relate everything which they use as unity to their function and at
the same time can assume that there is no equivalent for this in their
environment. By means of the functional relation concomitant with all
operations, a self-referential closure can be realized which is not to be
31 It is not unusual for this idea to appear in the construction of scales of ethnological
development. Cf. Naroll (1956; 1970).
found in the use of communication as a basic operation alone. The sub-

system then copies as it were the autopoiesis of society — not on the
general basis of recursive communication but by exclusive orientation to
a function.
The thesis introduced above that the legal system is differentiated as a
normatively closed but cognitively open system is a first indicator for this
functional orientation. But it is not in itself sufficient, since normative
expectations also exist outside the law — for example in morals and
religion, in the norms regulating the functional orientation of systems and
their implications for other systems. The legal system can at best claim a
specific use of normativity for itself. The theory of the self-referential
closure of the system must therefore contain a theory of the function of
law.32
The function of law is not simply a purpose or a regulative idea. If it
were a purpose it would be realizable in time and law would therefore end.
If it were a regulative idea it would be posited as unrealizable from the
outset, which would discredit law or at least raise the question of the real
function of real law. Instead we interpret law in terms of a principle of
structural selection. 33 Law consists of the exploitation of conflict perspect-
ives for the formation and reproduction of congruently (temporally/object-
ively/socially) generalized behavioral expectations. 34 The prospect of the
disappointment of an expectation and thus, if one clings to the expectation,
of a conflict, serves as a principle of selection by means of which generaliza-
tions can be tested. In the time dimension — and this indicates a certain
predominance of temporal problems — generalization is normative, i. e.,
is dictated by the intention to cling to expectations despite disappointment
and in the face of the facts. But not everything which is thus projected is
socially testable (see — an evolutionary theory perspective — Luhmann,
1970). The prospect of winning in the case of a conflict adds further
restrictions. The permanent interaction of these factors — an interaction
which is coordinated not by any "principle" but only by evolutionary
means — creates a large number of congruently generalized behavioral
32
This does not rule out an analytical separation of these questions; in fact it implies
the need for such a distinction. In other words, one can accept the conception of the
autopoietic system and at the same time define the function of law differently from
this essay, and vice-versa. However, the compatibility of these theoretical parts must
be considered in each proposed substitution.
33
The ambivalence of the formulation is intentional. What is meant here is selection of
the structure by the structure of the selection. Only this definition corresponds to the
mode of operation of a self-referential system.
34
Cf. also Luhmann (1985). This does not however bring out clearly enough the
operative connection between the prospect of winning (if necessary, by means of
physical violence) in the event of expectation. See also Luhmann (1981 a: 92—112).
28 Niklas Luhmann
expectations which can then be systematized by juristic skill, by comparisons

of cases, by concepts and by doctrine. 35 The result becomes, and is experi-
enced as, law.
VIII.
This definition of the function of law clearly distances law from the
intentions of welfare state control — a purpose for which it can, however,
also be used. 36 The political system characteristic of welfare states can enlist
the service of law because law can control the outcome of conflict. 37 It can
create new subjects of law by creating new possibilities of conflict — for
example by prohibiting the cultivation, trade and consumption of drugs —
and hence it can cause law to come into being. 38 The "natural" order of
the genesis of law is reversed. It is not the norm projection which tests
itself against its prospects in the event of conflict but conflict is, so to
speak, conjured up out of nothingness in the expectation that orientation
will form law from it. 39
Moreover the functional orientation towards conflict was also institution-
ally embedded. Insofar as legal generalizations developed on the basis of
sentencing practice they occurred only when preceded by conflicts. As a
result, legal concepts from the outset had a certain closeness to reality. It
is well known that the establishment of law by judges has not died out
and is perhaps becoming even more important. But at the same time there
35 The juristic idea of the unity of the legal system discussed at the beginning of this
article refers in particular to this.
36 Even today, law is still widely interpreted as a form of "social engineering", i. e., as
an instrument for realizing social intentions. Cf. Ziegert (1975). This is a very wide-
ranging survey and an attempt to establish an "expressive" dimension of law in
opposition to the "social engineering" interpretation. However, this interpretation
proves unsatisfactory as soon as one asks whether and to what extent the welfare
state puts excessive strains on law. For the political system, this may be a question
of the limits of causal efficiency. See Luhmann (1981b: 94 ff.). But ought not this
question — from the standpoint of the unity and the particular function of the legal
system — be posed differently?
37 On the "common" use of physical force in the legal system and in the political
system — a subject of major importance since the 18th century — see also Luhmann
(1981 c: 1 5 4 - 7 2 ) .
38 See the critical study by Duster (1970). Unfortunately, the author confuses the issue
in places with moralistic considerations.
39 This perspective has obvious parallels with the questions which Habermas discusses
in terms of the difference between rational systematics and life-world. See Habermas
(1981). A detailed comparison is difficult to make because all the key ideas (communica-
tion, action, system) are differently defined and the expectations connected with a
critique of modern society diverge. For an attempt at a synthesis, see Teubner (1982).
are also the legislative "mystery tours" (Esser) which do not emanate from
conflicts which are to be anticipated or about to be fought out but which
instead fix certain states through a political act of will — states which
ideally are expected not to produce conflict but approval and obedience.
It is problematic that such pre-decided conflicts lack the tension and the
uncertainty which motivate the generalization of law. Subjects of conflict
of this kind are arbitrarily specifiable but are ultimately interpreted merely
as artefacts of politically regulated power towards binding decisions — and
not as a tried and tested restriction of expectations. The problem has served
as an impetus for forced "democratization" of politics. It has brought us
the (unfortunately posed) question of the political legitimation of law-
making, a question which has given rise to a substantial body of literature.
The theoretical approach proposed here seeks a fundamentally different
solution. Only by interpreting the unity and the characteristic function of
the legal system in the context of the functional differentiation of the legal
system can one discern why and how law (similarly to money but in a
quite different manner) is "exploited" in the political system in a manner
quite alien to its function, without any consideration for its specific regener-
ation capacity.
This discussion of the unity and function of the legal system provides
an opportunity to examine a striking new development in the study of law,
a completely new kind of critique of law which has recently been much
debated at congresses and conferences as well as in literature. The critique
of law is of course as old as differentiated forms of law (see above all Nörr,
1970). The fact that no law can satisfy all wishes has always been vexing
and has kept the search for remedies and redresses going. In the hands of
people, lawyers and courts, law is obviously not what it should be.
Following the invention of printing in the 16th century, criticism of the
complexity of law — which could now so to speak be read by all and was
therefore public — also came into its own. This discussion continued into
the 18th century and revolved around the open question of whether redress
was more likely to come from the authority of the legislator — which
then, to be consistent, would have to forbid the quoting of the opinions
of jurists in court — or from the systematizing logic of the dogmatism of
law.40 This criticism remains embedded in a sceptical-realistic world view
and therefore, like the legal system itself, is not fully differentiated. "Giacche
liti, giudizi ed avvocati ci han da essere finche durera il mondo ne rimedio
e facilmente da sperare a certi inevitabili difetti della giurisprudenza"
(Muratori, 1958: 119).
40
See for example Muratori (1742, quoted from the Milan edition, 1958: 111 f.), which
proposes an option for reason and against authority. Here it does not even occur to
the author to deny that legislation can be a means of clarifying and simplifying law,
whereas today the precise opposite is true.
30 Niklas Luhmann
Today a completely different kind of world view and a completely

different kind of criticism of law are becoming prevalent, though they have
not yet found a valid formulation. On the one hand, they activate human
rights movements in the sphere of communicatively concentrated inter-
nationality, championing the cause of all structurally underprivileged people
without any consideration of legal-technical feasibility. On the other hand,
they complain about "too much of a good thing" — in the legal sphere,
for example, about the "juridification of life", about excessive use of
legistu<.η which is in itself positive, about rationality defects and the
disastrous effects of affluence. Yet they are unable to identify a criterion
or a limit at which the desirable is transformed into the detrimental. This
criticism operates a double bind — rejecting what it is not yet willing to
give up and at the same time making demands the legal-technical realization
of which would terrify them.
The discussion of "delegalization" — a concept originated in the United
States — provides a good example of this. 41 Delegalization is concerned
partly with shifting specific aspects of law into other areas, for example
replacing court decisions by the amicable persuasion of arbitration; and
partly with the related prospect of excluding entire areas of life from the
sphere of law. The appeal of this program resides not least in the fact that
no distinction is made between alternatives to specific legal institutions
and the law itself. 42 However if one bears in mind the unity and function
of the legal system, one is obliged to reflect on how delegalized alternatives
propose to implement their schemes for the anticipation and avoidance of
litigation, which brings us back to the question of law, a question merely
"repressed". The question of law invariably forces its way back, unless it
is argued that one must accept the arbitrariness of those in power 4 3 or the
moral pressures of well-meaning fellow citizens.
A critique of law which merely objects to an excess of regulation and
does not consider the conflict aspect of law poses the problem incorrectly.
It criticizes the political use of law, the extent of such use, perhaps also
the contents of such laws. But this still leaves open the question of whether
and how the legal system itself as a closed, self-referential reproduction
unit can exist side by side with a money economy and welfare state
policies in modern conditions. If one does not differentiate between the
corresponding system references, one will in some circumstances fail to
recognize important development tendencies in law, such as the trends
41 See the highly critical account by Abel (1980).

42 T h e title o f the last-mentioned w o r k underlines that such a distinction can be conceived
and formulated.
43 Abel (1980: 407) rightly stresses that: "delegalization p r e s u p p o s e s that the people or
entities that interact outside formal legal institutions are roughly equal in political
power, wealth and social status".
towards social engineering and the instrumentalization of law; nor will

one be able to understand Max Weber's skepticism about the social-
eudaemonistic tendencies in law which were beginning to emerge in his
time.
However, it is equally false to regard conflict regulation as the sole
function of law. It is indisputably the case that many conflicts have been
shifted out of the sphere of law. 44 From this perspective, law does in fact
enter into competition with other, functionally equivalent possibilities. But
the actual use of these alternatives means a renunciation of motives,
occasions and situations for the establishment and reproduction of law.
Conflicts are then no longer used to generalize expectations but are regarded
as conflicts only in ad hoc fashion and are eliminated whenever possible.
In order to advance beyond the present unsatisfactory discussion of
subjects such as legalization, the plethora of laws, bureaucratization, the
formulation and complexity of law, we must first recall the connection of
a fully autopoietic constitution of social subsystems with the principle
of functional social differentiation. Functional specification, whatever its
evolutionary advantages and further potential may be, seems to be the ideal
starting point for the full differentiation of subsystems, i.e., a principle for
which there is no equivalent in the respective environments of the systems
(including the intra-societal environment). The function system, although
it uses and reproduces social communication and remains capable of connec-
tion with the environment, is, so to speak, free to constitute unity on its
own account, to communicate closure and openness, to create the structures
necessary for this purpose and to coordinate all this with its own function.
In other words, we argue that an empirically ascertainable connection
exists between the principle of differentiation of the social system and
the form in which subsystems in society differentiate themselves as self-
referentially closed and as open to the environment. It is a question here
of two sides of one and the same process of social differentiation, which
is simply the making possible of a form of communication of closure and
openness which is characteristic of subsystems. For the legal system this
means the differentiation of a connection between normative closure and
cognitive openness. Here that which serves as a contrafactual norm is, in
the process of social evolution, increasingly pointed to the function of law.
The critique of law is therefore essentially a critique of social differentiation.
This leads to a large number of related questions requiring further
analysis which can only be outlined here. Perhaps the most interesting is
the question of whether an upper tolerance level for complexity exists
beyond which the specific legal symbiosis of normative and cognitive
44 Some motives working in this direction are discussed in Aubert (1983: 134 ff.), above
all: avoidance of the all-or-nothing risk, saving of time and money, elimination of
publicity, external control, possible loss of standing.
32 Niklas Luhmann
orientations no longer functions. One indicator here is that the development

of logic and of the empirical sciences in the past hundred years has raised
doubts about the scientific character of jurisprudence. Closely related to this
is the question of whether jurists can continue to base their understanding of
the law and their interpretations on consequence orientation where it is
possible to find out what the possibilities of prognosis are. 45 It is equally
important to ascertain the significance of similar treatment of similar cases
and disparate treatment of disparate cases and of the legal doctrine which
is designed to deal with these questions, when on the one hand legislation
rigorously specifies and incessantly changes legal questions, and on the
other hand the causal perspective of social engineering — because of
differences between the relevant factors — makes it practically impossible
to compare cases. The reversal of the conflict perspective discussed above
(in part VI) must also be taken into consideration: if it is no longer a
question of deciding what expectations (tested against what generalizations)
can be maintained in the event of conflict, if instead conflicts decided in
advance are created in order to append regulations to them which have
legal validity, then it must be assumed that the response to this will be a
profound change in the conception of law — although at present no
empirical indicators are available for the registering of such change.
The common denominator for all these different problems may lie in
the fact that the evolution of the social system makes possible the establish-
ment of a highly improbable order, an order which is full of preconditions.
The combination of normative closure and cognitive openness discussed
above is one of these improbabilities. It is probable that such contradictory
attitudes of expectation will ruin one another. Very specific conditionings
are required in order to guarantee separability and compatibility, and given
the rapid pace of social change these conditionings rapidly lose their
credibility. Every reference to the validity of conditions of validity finally
becomes suspect simply by the fact of being used as an argument. All
that remains is the demand for continuous adjustment of law to social
development while maintaining the regenerative capacity of normativity.
Law which is adaptive, responsive and capable of learning must avoid the
discrediting of its own normativity or else it will reduce itself to being an
instrument of bureaucratic implementations of political power.
What the new critique has taken up appears to be this immanent
improbability, which emerges all the more clearly as political demands on
45 The self-assurance with which this occurs is just as impressive as the argument that
other possibilities — such as classical conceptual jurisprudence or obstinate thinking
in categories of law regardless of consequences — have lost their plausibility. However,
precisely this could be a symptom of a deep-seated crisis in law, especially if one
accepts our argument that conditionality is a necessary structure for the connection
of closure (normativity) and openness (cognitivity). All this could indicate that without
consequence orientation nothing is possible — and also that with it nothing is possible!
law increase. Given the complexity of the facts, prognoses are difficult, as
is any decision on the central issues themselves — for example, a decision
for or against the instrumentalization of law for political purposes. How-
ever, the terms and the theoretical approaches by which the legal system
describes itself remain a matter of crucial importance. And here advances
and improvements can be made on the basis of interdisciplinary theoretical
developments and an emergent sociological theory of society.
Translated from the German by Paul Knight.
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The Unity of the Legal System

tion. Cf. for example Pawlowski (1981: 220ff.); Krawietz (1981: 2 9 9 - 3 3 5 ) .

referential systems as systems which themselves produce as unity everything

In the sphere of action systems, Parsons explicitly queried the constitution

12 Or simply as "computation". See von Foerster (1973: 35—46). Reality according to

are therefore bound to form their final elements as communications. The

uncertain future situations, of the advance choice of strategy, of the

cooperation of (normative) closure and (cognitive) openness is a condition

deduction and beyond the sphere of causality. 21 Thus there is no attribution of

26 The discussion of this issue is riddled with misunderstandings. In particular, a vital

conditional p r o g r a m m i n g must be demanded as a condition o f the legality of political-

The unity of a self-referential system can only be realized as one which

found in the use of communication as a basic operation alone. The sub-

expectations which can then be systematized by juristic skill, by comparisons

Today a completely different kind of world view and a completely

41 See the highly critical account by Abel (1980).

towards social engineering and the instrumentalization of law; nor will

orientations no longer functions. One indicator here is that the development

ABEL, RICHARD L. (1980) "Delegalization: A Critical Review of its Ideology, Manifesta-

NÖRR, DIETER ( 1 9 7 4 ) "Rechtskritik in der römischen Antike" (The Critique of Law in

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