Future Uncertainty as a Challenge to Law’s Programmes: The Dilemma of Parental Disputes
| Author | Michael King |
| Published date | 01 July 2000 |
| Date | 01 July 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00278 |
Future Uncertainty as a Challenge to Law’s
Programmes: The Dilemma of Parental Disputes
Michael King*
The article poses the problem of the need for judges to make ‘r ight’ decisions. It
then describes how judges have attempted to meet this requirement in difficult
cases concerning parental disputes over contact with children where there have
been allegations of domestic violence. Applying Luhmann’s concepts of the legal
system, law’s function, law’s coding and law’s programmes (Das Recht der
Gesellschaft (Society’s Law) 1997), offers a very different perspective on the issue
to that of the judiciary or legal commentators who tend to see the issue of the law,
determining, with expert help, what is best for the child. Law’s function of
stabilizing expectations over time obliges it to deal with all matters that come
before the courts through the application of ‘c onditional programmes’ and
prevents it from applying the ‘purpose oriented programmes’ of politics and
those who see the issue in terms of ideological conflict.
The problem that the legal system faces in a much sharper form than any other
social system is how to decide who is right and who is wrong and then how to
justify that decision in ways that appear cogent and convincing. For Niklas
Luhmann, this need to be right presents a daily problem for judges:
who is right and who is wrong[?] . .. On the one hand, the judge is not allowed to take the
stand of the teacher and accept the right on both sides. But on the other hand, there might be
deeper reasons to accept controversies with their right on both sides, and, if this is so, what
or who justifies the judge in eschewing the reasons as if they were not valid?1
Certainly, teachers, scientists, investors and company directors, make right/wrong
judgments but the difference is that they can acknowledge (if reluctantly) the
possiblity of being wrong or their failure, at the time of deciding, to take into
account valid reasons for making a different decision. Other than judges, it is only
politicians who always need to deny the ‘deeper reasons’ for ‘controversies’ and
claim always to be right. There is a difference between them, however, this is that
politicians risk being proved wrong by events within or outside the political sphere,
while the judgments of judges do not depend for their validity on the correctness of
their predictions or the results of their policies, but only on decisions of a higher
court – in other words on their correctness for law itself. Luhmann sees judges
paying for this judicial certainty of rightness and denial of shades of grey – ‘[t]he
price is acceptance of the paradox of the binary code applied to itself’,2the
constant referral back to law for validity and thus the acceptance of legal reality as
the only reality or rather the only reality that law is able to take seriously. This
knowledge of rightness is, according to Luhmann, essential to law’s social function
of stabilizing normative expectations and so avoiding the need to learn from
ßThe Modern Law Review Limited 2000 (MLR 63:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 523
* Centre for the Study of Law, The Child and the Family, Law Department, Brunel University. I should
like to thank Felicity Kaganas and Shelley Day Sclater for allowing me to draw upon their forthcoming
article for recent cases and research on violence and parental contact.
1 N. Luhmann, ‘The Third Question: The Creative Use of Paradox in Law and Legal History’ (1988) 15
Journal of Law and Society 153, 153–154.
2ibid.
experience. For law, any judicial admission of ignorance, any confession that law
might not be able to resolve what it has already designated as a legal problem, may
alone be sufficient to undermine not only its own stability, but also that of other
social institutions which depend upon the production of legal communications.
Of course, this way of conceptualising legal decision-making, and in particular its
assumption of law as a closed system, is not without its critics.
3
Many lawyers, both
academic and practising, would refute any qualitative difference between legal
decisions and any other form of decision-making where rational and moral
evaluations are applied to factual problems in the interests of truth or achieving the
right answer. If, as they claim, there are no normative barriers between legal
decisions and decisions in any other sphere, law has the relatively simple task of
‘down-loading’ knowledge from science, economics, moral philosophy, medicine
etc. and applying them as law to the facts of the case. In this way the courts can be
certain of reaching an answer, which, as well as being ‘right’, will also respond to
the continual demands for progress and improvement. Yet, many of the fiercest
critics of the Luhmann heresy have tended to concentrate their attack on what
appears to them to be the anti-reformist, anti-progessive tendencies, the negativity of
autopoiesis, as a theory of closed self-referring systems.
4
In doing so they tend to
focus on the theory’s provocative, (or, as they would see it, outrageous) ‘headlines’
and pay little attention to the details, the ‘small print’, of the theory. To some extent
it will be a by-product of this present article to rectify this situation by revealing
aspects of autopoiesis which have received little attention at least from Anglo-
American, as opposed to Continental European legal and sociological
commentators. Its main task, however, is to demonstrate how the theory may be
able to conceptualise legal operations in very different terms to those provided by
the legal or social policy discourses, the major controversies which engage the
attention in so many fields of law. It is not that the theory in any way denies the
importance of these controversies for the participants and, indeed, for what they and
many others see as the good of society. It is rather that visions of society’s future
welfare are inevitably restricted not only by uncertainty as to what the future may
bring, but also by the way that law operationalises the issues, by the way that it
imposes its self-generated programmes upon them, and frames these issues in terms
of its own version of fact-finding or truth-seeking, and the promotion of equality etc.
As many judges will admit, the need to find definitively right answers to
questions concerning children’s welfare is one of the most taxing of all tasks that
they have to undertake. It is made even more difficult when it is accompanied by
the mutual, and often fierce, hostility of the parties towards each other and by
vehement accusations and equally vehement denials and counter-accusations over
past events concerning their lives together and their past, present and future
behaviour towards the children. Observers – whether seekers after justice,
protectors of women or children or promoters of children’s rights – of these
attempts of judges to reach a ‘right answer’ have not been slow to take them to task
for what these observers see as blatant failings in the decision-making itself and in
3 See, for example, J. Habermas, Between Facts and Norms (Cambridge: Polity Press, 2nd ed, 1996);
J.W. Harris, Legal Philosophies (London: Butterworths, 1997); Richard Lempert, ‘The Autonomy of
Law: Two Visions Compared’ in G. Teubner (ed) Autopoietic Law: A New Approach to Law and
Society (Berlin, New York: Walter de Gruyter, 1988)) 152–190; H. Rottleuthner, ‘A Purified Sociology
of Law: Niklas Luhmann on the Autonomy of the Legal System’ (1989) Law and Society Review 23,
779–797.
4 See Anthony Beck, ‘Is Law and Autopoietic System?’ (1994) 14 Oxford Journal of Legal Studies 401,
418; Arthur Jacobson, ‘Autopoietic law: The new science of Niklas Luhmann’ (1989) 87 Michigan Law
Review 1647, 1681.
The Modern Law Review [Vol. 63
524 ßThe Modern Law Review Limited 2000
To continue reading
Request your trial