Communications Systems

Luhmann's Theory of Communication

Scholars commonly conceive of society as a system comprising several subsystems, such as politics, [Page 215]economy, religion, art, science, or law. Talcott Parsons (1902–1979) and his followers analyzed social systems as action systems. More recently, Niklas Luhmann (1927–1998) proposed to understand society and its subsystems as systems of communications. For the legal system, this means that law does not consist of lawyers, judges, plaintiffs, defendants, and their respective behavior or even courts, prisons, law libraries, and law schools, but of a web of communications that is always under construction.

Communication is an action aimed at the transfer of information to another person, who will perceive it or not. An act of communication normally connects one to others, referring to earlier communication within a system and provoking new communication. For instance, a court reacts to a claim by summoning the defendant. The defendant files an answer. During the trial, parties exchange arguments. They refer to earlier communication, to contracts, statutes, and legal precedents. Finally, the court “communicates” its verdict, and, again, the verdict becomes a starting point for further communication. The plaintiff and defendant deal with enforcement of the judgment. Other lawyers, judges, and law students cite the verdict as precedent, and so on. Thus, the system builds elements of which it consists, by referring to elements that already belong to the system itself. This feature led Luhmann to the notion of “autopoiesis,” or operational closure, as a constitutive property of social systems.

Operational closure means that a system, in this case the legal system, deals only with communications from within the system and not with communications from other systems in its environment, and vice versa. For example, judges do not react to a newspaper report about an accident, only to a formal claim. Like hospitals, which are not able to abolish accidents but have to do their best for the injured, courts cannot print dollars to compensate accident victims but are restricted to their own way of handling damages, by examining facts and legal issues, promoting settlement talks, or rendering verdicts.

Luhmann's notion of operational closure is highly debated in its details. Traditional systems theory also built on the distinction between a system and its environment, divided by a borderline. However, it conceived of this border as permeable, assuming an ongoing exchange between the system under consideration and other systems that make up the environment. Luhmann instead introduced the notion of structural coupling, again, a difficult and debated issue. To oversimplify, the legal system observes and reacts to communication within other social systems. It does so, however, in relatively unstructured and unpredictable ways. For courts, public opinion is not a legitimate source of information, but just a kind of noise. Luhmann called such external communication “irritation.” Nevertheless, courts react in subtle ways to the noise of public opinion if it becomes louder and merges in unison.

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