Social Systems Theory And Judicial Review

This book demonstrates the empirical gains and integrative potentials of social systems theory for the sociology of law. Against a backdrop of classical and contemporary sociological debates about law and society, it observes judicial review as an instrument for the self-steering of a functionally differentiated legal system. This allows close investigation of the US Supreme Court’s jurisprudence of rights, both in legal terms and in relation to structural transformations of modern society. The result is a thought-provoking account of conceptual and doctrinal developments concerning racial discrimination, race-based affirmative action, freedom of religion, and prohibition of its establishment, detailing the Court’s response to boundary tensions between functionally differentiated social systems. Preliminary examination of the European Court of Human Rights’ privacy jurisprudence suggests the pertinence of the analytic framework to other rights and jurisdictions. This contribution is particularly timely in the context of increasing appeals to fundamental rights around the world and the growing role of national and international high courts in determining their concrete meanings.

However, unlike conventional legal theory, this volume seeks to provide an answer in terms of a general social theory: a methodology that answers this question in a manner applicable not only to law, but also to all the other complex and highly differentiated systems within modern society, such as politics, the economy, religion, the media, and education. This truly sociological approach offers profound insights into the relationships between law and all of these other social systems.

With contributions from experts in the field of sociology of law, this book provides an overview of current perspectives on socio-legal studies. It focuses particularly on the relationship between law and society described in recent social systems theory as ’structural coupling’. The first part of the book presents a reconstruction of theoretical tendencies in the field of socio-legal studies, characterised by the emergence of a transnational model of legal systems no longer connected to territorial borders and culturally specific aspects of single legal orders. In the following parts of the book, the contributions analyse some concrete cases of interrelation between law and society from an empirical and theoretical perspective.

Theorical perpectives; Comparative perspectives; Special studies: USA.

This book discusses the designs and applications of the social systems theory (built by Niklas Luhmann, 1927-1998) in relation to empirical socio-legal studies. This is a sociological and legal theory known for its highly complex and abstract conceptual apparatus. But how to change its scale in order to study more localised phenomena, and to deal with empirical data, such as case law, statutes, constitutions and regulation? This is the concern of a wide variety of scholars from many regions engaged in this volume. It focuses on methodological discussions and empirical examples concerning the innovations and potentials that functional and systemic approaches can bring to the study of legal phenomena (institutions building, argumentation and dispute-settlement), in the interface with economy and regulation, and with politics and public policies. It also discusses connections and contrasts with other jurisprudential approaches - for instance, with critical theory, law and economics, and traditional empirical research in law. Two decades after Luhmann's death, the 21st century has brought countless transformations in technologies and institutions. These changes, resulting in a hyper-connected, ultra-interactive world society bring operational and reflective challenges to the functional systems of law, politics and economy, to social movements and protests, and to major organisational systems, such as courts and enterprises, parliaments and public administration. Pursuing an empirical approach, this book details the variable forms by which systems construct their own structures and semantics and 'irritate' each other. Engaging Luhmann's theoretical apparatus with empirical research in law, this book will be of interest to students and researchers in the field of socio-legal studies, the sociology of law, legal history and jurisprudence.

This book uses Niklas Luhmann's systems theory to explore how the legal system operates as one of modern society's subsystems. The authors demonstrate 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 law; the character of legal pluralism and globalisation; time and its construction within law; the significance of the rule of law and human rights and the role of appeals to, and within, law. Systems theory enables the authors to demonstrate how the legal system observes its own operations through its own communications, and how this contrasts with the manner in which law is observed by other systems such as the media and politics. In this context the authors explore the constraints imposed by systems, in particular the legal system, upon the individuals who participate in them.

For decades, the question of judicial review’s status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority. Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review’s value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy’s opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context. Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review’s democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.

Combining philosophical pargmatism with a methodological foundation, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area.Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in a clear andconcise fashion while articulating a social theory of law which draws equally from legal theory and socio-legal theory.