Observing Law through Systems Theory

ISBN-13: 9781849462181 / Angielski / Miękka / 2012 / 290 str.

Richard Nobles

Opis

This book uses Niklas Luhmann's systems theory to explore how the legal system operates as one of modern society's subsystems. It demonstrates how this theory alters our understanding of some of the most important and controversial issues within law: the nature of judicial communication and legal argument * the claim that it can be right to disobey the law * the character of legal pluralism and globalization * time and its construction within the law * the significance of the rule of law and human rights and the role of appeals to, and within, the law. Systems theory enables the book to demonstrate how the legal system observes its own operations through its own communications, and how this contrasts with the manner in which the law is observed by other systems, such as the media and politics. In this context, the book explores the constraints imposed by systems, in particular the legal system, upon the individuals who participate in them. Observing Law through Systems Theory is a follow-up volume to A Sociology of Jurisprudence. (Series: Legal Theory Today)

Spis treści

1 Is the Legal System a System? 2 Why Do Judges Talk the Way they Do? Social Systems, Psychic Systems and Redundancy Judicial Communications and 'Commitment' to the Legal System Judicial Discretion Conclusion 3 Can One Have a Right to Disobey a Law? Civil Disobedience within the Legal System Civil Disobedience within the Political System Social Movements and Civil Disobedience Civil Disobedience within the Legal and Political Systems – A Case Study (Debbie Purdy's Case) Conclusion 4 Understanding Legal Pluralism Brian Tamanaha's Criticisms of Systems Theory How Does One Identify a Subsystem Code? Law and Violence Normative Pluralism Pluralism and Translation Exploring Legal Pluralism in Modern and Pre-modern Societies Conclusion 5 How Law Constructs Time Time, Law and Politics A Simple Example: The Presumption of Innocence A Complex Example 6 Politics and Law: The Rule of Law, Constitutional Law, and Human Rights The Rule of Law Constitutional Law Constitutional and Human Rights, and Societal Constitutionalism 7 Control through Law Steering through Constituting Rules Observing Reflexive Law Structural Coupling Dynamics 8 Appeals in Law Appeals and Doctrine The Structural Coupling between Law and the Media through Conviction Implications of Criminal Appeals for the Structural Coupling between Law and the Media The Pressures Generated by the Differences between the Media and the Legal System's Understanding of Appeal Postscript: A Comment on Human Involvement