Can Law reproduce itself
The notion of the law being capable of reproducing itself is curious at first sight. We are accustomed to thinking about the law as something that is crafted by lawmakers, debated in parliaments, or claimed, decided upon, or engaged as part of the proceedings in courts. Niklas Luhmann, a German sociologist and legal theorist, invited us to think differently. In Law as a Social System, he asserted that the law is not just a set of rules imposed upon us by other people, the law has sustained itself through the operation of its own systems. He referred to this with the concept of autopoiesis, borrowed from biology and means self-production.
Autopoiesis was originally conceived in relation to living cells; a living cell reproduces its own components utilizing its own processes; it does not rely upon something from outside the cell/organization to tell the organization what it is. Luhmann theorized that modern society works in a similar fashion through the operation of different systems: politics, economics, science, law. Each of the systems communicates in its own code, and sustains itself through the communication practices associated with that code. Law, for Luhmann, is not just written statutes or decisions rendered by courts; rather, the law is an ongoing communicative process that continues to produce new law.
For Luhmann, the basic code of law is based on the distinction between legal/illegal. Every legal communication refers to the distinction between legal or illegal; a statute tells me what counts as permitted or prohibited; a court judgment tells me that an act is lawful or unlawful. In other words, once a legal communication is produced, it can provide the basis for ongoing communicative acts. Later judges subsequently endorse earlier judges in their decisions, or legislators will change statutes in response to court decisions. Lawyers refer to earlier normative rules in the course of their cases. Thus, the system is always feeding off itself, producing yet more communications in a similar code. This is, after all, what Luhmann meant when he referred to law as autopoietic.
What this brings into view is a rather different picture from the one that many jurists bring to the law. That is to say, the traditional view understands law as something dependent on external sources, rather than as a self-sustaining system or order. Luhmann did not argue against the relationship between law and other systems, but he insisted that law manages—processes—this relationship through its own code. A political or moral desire does not become law just because it is uttered. Instead, for it to translate, the communication must first be unfolded into legal terminology—words, phrases, ideas—that populate legal language. Law does not take directions from outside, but rather translates those intrusions back into its own internal vocabulary and reproduces itself through that process.
This can be understood by way of an example. Take a public commendation against environmental degradation. Environmentalists might speak in relative terms of moral obligation. Politicians might respond with policy goals. For law, these communications represent noise from outside the system until they are indeed expressed in legal form, for instance as a statute regulating carbon emissions or a lawsuit for a nuisance claim. Once re-expressed in legal communications, courts and lawyers can then start to move forward with the context of whether certain acts are lawful or unlawful. In this case, the system is absorbing external pressure, but only through a translation into its own internal workings. The concept may be abstract, but implications arise for how we understand law’s independence. If law reproduces itself, it would not be controllable directly by politics or morality. It would interact with politics and morality but maintain its boundaries. Luhmann saw this as indicative of the strength of modern legal systems. Law provides stability by recognizing its autonomy and independence and is less subject to the whims of any political change or moral panic because it does not simply replicate the external discourse over political change or moral outrage. It incarnates that discourse through its own logic.
Critics might say that paints a picture of law as disconnected from society. If law only speaks to itself, do laws not risk being disconnected from the very people they are supposed to serve? We would respond that closure does not equal isolation; law remains structurally coupled with other systems, and law is continuous with irritations and pressures from politics, economics, and morality. However, the way law handles all those irritations is subject to the terms of that code. Law cannot simply take on another reason offered as external in the discourse of the legal distinction between legal and illegal.
Contrasting, consider the concept of precedent. Usually, a court does not decide cases simply by weighting moral truth; courts weight legal precedence, statutes, or legal principles. Even in the instance when a judge is fumbling around with moral ideas, any moral ideas must still be recast into legal reason.
This reflexive structure illustrates the manner in which law reproduces itself. Law produces new law out of past legal communications to generate a potentially infinite process of reproduction of law.
The idea of autopoiesis also explains how legal systems persist (or can persist) in times of stress. The law may persist even in the face of widespread failing political systems as long as lawyers and judges continue doing things in legal ways (deciding law). When moral imperatives expect radical change, the law can accommodate that demand as long as it happens in the form of law, or legal mechanisms. The civil rights movement in the United States presented a strong moral argument. This moral demand only took law form when it was argued and litigated in the courts and articulated in legislative reform. The law was able to naturalize the moral language in the form of legal language, and thereby process and again reproduce itself.
This way of thinking pushes law out of a commanding voice, and places it in communication. Law is not a series of commands from a sovereign. Law is a network of decisions, arguments, and precedents, all referring back to legal communications. The reproduction of law is not biological; it is communicative. Each judgment or statute is added to the new materials that is drawn on in later communications.
Some find this concept disturbing because it downplays individual involvement. In Luhmann’s theory of law, there is no singular actor who is in charge of law. Legislators, judges, and lawyers all play a part, but it is the system as a whole that is autonomous. This points to the reason that legal reform is cumbersome and slow. Even when there is a substantial political will, it takes time for the law to translate any proposal into its own code and network of communications.
It is an exacting theory for students and citizens, but gives insight into the technical and self-indulgent dimensions of law. This is not because lawyers enjoy law jargon, it is because the system perpetuates its boundaries in its own language and communication, and lawyers are part of the system. The positive aspect is stability. The negative consequences are detachment.
For Luhmann the answer to the question "Does law reproduce itself?" is an unequivocal yes. Law reproduces itself by creating new legal communications from its prior legal communications, always to the distinction of legal and illegal. Law does not directly respond to morality or politics, but is linked to each. Law forwards its identity by converting external pressures into its own code.
The communicative response means that the authority of law is not only about commands from the outside. The authority of law is reliant upon generating and reproducing itself as a consistent system of communications. Whether one thinks of this as a strength or a weakness depends largely on what one expects law to do. For Luhmann, this self-production of law was not a failing but the defining characteristic of modern legal systems.
